Lozcal Holdings Ltd. v. Brassos Developments Ltd., (1980) 22 A.R. 131 (CA)

• Judge: McGillivray, C.J.A., Clement and Morrow, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: March 24, 1980
• Citations: (1980), 22 A.R. 131 (CA)

Lozcal Holdings Ltd. v. Brassos Dev. (1980), 22 A.R. 131 (CA)

MLB headnote and full text

Lozcal Holdings Ltd. v. Brassos Developments Ltd.

(12232)

Indexed As: Lozcal Holdings Ltd. v. Brassos Developments Ltd.

Alberta Court of Appeal

McGillivray, C.J.A., Clement and Morrow, JJ.A.

March 29, 1980.

Summary:

This case arose out of the breach by a buyer of an agreement for the sale of land. The agreement provided that if the buyer defaulted "the deposit shall be subsequently forfeited as liquidated damages". The seller resold the land at a loss and then claimed damages from the buyer. The buyer alleged that the seller's claim for damages was limited to the amount of the deposit. The trial court accepted the buyer's allegation and held that the seller was limited to a recovery in the amount of the deposit. The trial court judgment is not reported in this series of reports. The seller appealed to the Alberta Court of Appeal.

The Alberta Court of Appeal allowed the appeal and held that the words "liquidated damages" in the agreement for sale did not have the effect of limiting the seller's claim for damages to the amount of the deposit. The Court of Appeal held that more express language was required to limit the seller's claim for damages.

Sale of Land - Topic 7673

Remedies of vendor - Damages - Clauses limiting a buyer's liability for damages - An agreement for the sale of land provided for a deposit of $2,500.00 on a purchase price of $67,000.00 - The agreement provided that if the buyer defaulted "the deposit shall be subsequently forfeited as liquidated damages" - The buyer defaulted and the seller resold the land for $60,000.00 and then claimed damages from the buyer - The buyer alleged that the seller's claim for damages was limited to the amount of the deposit - The Alberta Court of Appeal rejected the buyer's allegation and allowed the seller's claim for damages including, inter alia, damages for the seller's loss on the resale - The Court of Appeal held that more express language was required to limit the seller's claim for damages.

Contracts - Topic 4503

Discharge or termination - General principles - Effect of termination by repudiation - The Alberta Court of Appeal rejected a plaintiff's claim that the plaintiff's repudiation of a contract for breach put the contract at an end and precluded the defendant from relying on a term in the contract to defend the plaintiff's claim for damages - See paragraph 43.

Damages - Topic 1101

Liquidated damages - The Alberta Court of Appeal referred to a definition of liquidated damages - See paragraphs 14 to 16.

Sale of Land - Topic 7742

Remedies of vendor - Forfeiture of deposit - Deposit defined - The Alberta Court of Appeal referred to a definition of a deposit - See paragraphs 11 to 13.

Sale of Land - Topic 3443

Contract - Discharge - Repudiation by buyer - The Alberta Court of Appeal referred to the seller's remedies when a buyer repudiates a contract of sale - See paragraphs 7 and 8.

Words and Phrases

Liquidated damages - The Alberta Court of Appeal discussed the meaning of the words "liquidated damages" as found in an agreement for the sale of land.

Cases Noticed:

Dobson v. Winton and Robbins Ltd., [1959] S.C.R. 775, refd to. [para. 6].

Scott v. Butterfield, [1951] 2 D.L.R. 339, refd to. [para. 7].

Luscombe et al. v. Mashinter (1978), 12 A.R. 590; 5 Alta. L.R.(2d) 164, refd to. [para. 8].

Howe v. Smith, [1884] Ch.D. 89, refd to. [para. 11].

Soper v. Arnold, [1889] 14 A.C. 429, refd to. [para. 12].

Dunlop Pneumatic Tyre Co. Ltd. v. New Garage and Motor Co. Ltd., [1915] A.C. 79 (H.L.), refd to. [para. 15].

Cellulose Acetate Silk Co. Ltd. v. Widnes Foundary (1925) Ltd., [1933] A.C. 20 (H.L.), refd to. [para. 15].

Waugh v. Pioneer Logging Co. Ltd., [1949] S.C.R. 299, refd to. [para. 17].

Hancock v. B.W. Brazier, [1966] 2 All E.R. 901, refd to. [para. 24].

J. Gordon Alison & Co. Limited v. Wallsend Slipway et al., 43 T.L.R. 323, refd to. [para. 25].

London and Northwestern Railway Company v. Neilson, [1922] A.C. 263, refd to. [para. 26].

Gisvold et ux v. Hill (1963), 41 W.W.R. 549, refd to. [para. 30].

St. Catharines Improvement Co. v. Rutherford (1914), 19 D.L.R. 662, refd to. [para. 36].

Dorge v. Dumesnil (1973), 39 D.L.R.(3d) 750, refd to. [para. 39].

Seeley v. Conroy (1977), 19 N.B.R.(2d) 1; 30 A.P.R. 1, refd to. [para. 40].

Authors and Works Noticed:

Halsbury's Laws of England (3rd Ed.), vol. 34, p. 234 [para. 13].

Anson's Law of Contract (24th Ed.), p. 550 [para. 15].

McGregor on Damages (13th Ed.), s. 217 [para. 37].

Counsel:

James A. Butlin, for the appellant;

James W. Conway, for the respondent.

This appeal was heard by McGILLIVRAY, C.J.A., CLEMENT and MORROW, JJ.A., of the Alberta Court of Appeal.

The judgment of the Alberta Court of Appeal was delivered by McGILLIVRAY, C.J.A., at Calgary, Alberta on March 24, 1980.