McKee v. Montemarano et al.

• Jurisdiction: Ontario
• Court: Court of Appeal (Ontario)
• Judge: Doherty, Cronk and Rouleau, JJ.A.
• Citation: 2009 ONCA 359,(2009), 251 O.A.C. 156 (CA)
• Date: 15 April 2009

McKee v. Montemarano (2009), 251 O.A.C. 156 (CA)

MLB headnote and full text

Temp. Cite: [2009] O.A.C. TBEd. MY.014

Marvyn McKee and Paul McKee (plaintiffs/respondents in appeal) v. Saverio Montemarano, Saverio Montemarano in trust for a new company to be incorporated and Danhew Holdings Limited (defendants/appellants in appeal /defendant/respondent in appeal)

(C49175; 2009 ONCA 359)

Indexed As: McKee v. Montemarano et al.

Ontario Court of Appeal

Doherty, Cronk and Rouleau, JJ.A.

April 15, 2009.

Summary:

The sale of a real property did not close. The purchasers registered a caution against the property. The sellers sued for damages. The purchasers counter-claimed and cross-claimed. The parties agreed that the trial would be phased with phase 1 dealing with the validity of the agreement of purchase and sale between the parties.

The Ontario Superior Court, in a decision reported [2008] O.T.C. Uned. E67, declared the agreement of purchase and sale to be void and ordered that the caution be removed. The purchasers appealed.

The Ontario Court of Appeal dismissed the appeal.

Sale of Land - Topic 956

The contract - Conditions and warranties - Waiver - An agreement of purchase and sale provided that the sale of the subject property was conditional upon the purchasers performing due diligence - The purchasers were to give notice in writing "delivered to the Seller" no later than a certain time that either the condition was fulfilled or was waived - The purchasers delivered, on time, a written notice of waiver to the sellers' home, with a copy to the sellers' real estate representative - The trial judge declared the agreement of purchase and sale to be void where the written notice of waiver had to be brought to the personal attention of the sellers - As this did not occur on time, the delivery requirement for an effective waiver was not satisfied and the agreement of purchase and sale became void - The Ontario Court of Appeal upheld the decision - See paragraphs 1 to 13.

Words and Phrases

Delivered to the Seller - The Ontario Court of Appeal discussed the meaning of the expression "delivered to the Seller" found in a due diligence clause contained in an agreement of purchase and sale of real property - See paragraphs 3 to 13.

Counsel:

Patrick J. Monaghan, for the appellants Saverio Montemarano and Saverio Montemarano, in trust for a new company to be incorporated;

Geoffrey D.E. Adair and Don White, for the respondents, Marvyn McKee and Paul McKee;

Neil A. Kaufman, for the respondent, Danhew Holdings Limited.

This appeal was heard on April 15, 2009, by Doherty, Cronk and Rouleau, JJ.A., of the Ontario Court of Appeal. The Court of Appeal rendered a decision orally on April 15, 2009, with the following written endorsement released on May 1, 2009.