Nuport Holdings Ltd., Re,

• Jurisdiction: Newfoundland and Labrador
• Judge: Green
• Neutral Citation: 2003 NLSCTD 63
• Citation: 2003 NLSCTD 63,(2003), 224 Nfld. & P.E.I.R. 254 (NFTD),224 Nfld & PEIR 254,(2003), 224 Nfld & PEIR 254 (NFTD),224 Nfld. & P.E.I.R. 254
• Date: 25 April 2003
• Court: Supreme Court of Newfoundland and Labrador (Canada)

Nuport Holdings, Re (2003), 224 Nfld. & P.E.I.R. 254 (NFTD);

    669 A.P.R. 254

MLB headnote and full text

Temp. Cite: [2003] Nfld. & P.E.I.R. TBEd. AP.039

In The Matter Of the Quieting of Titles Act, R.S.N. 1990, c. Q-3, as amended;

In The Matter Of an Application by Nuport Holdings Limited, a body corporate, incorporated under the laws of the Province of Newfoundland concerning a certain piece or parcel of land situate and being at Topsail Road, Paradise, in the Province of Newfoundland;

And In the Matter Of a claim by the Estate of Michael Duff, Intervenor.

(2001 01T 397; 2003 NLSCTD 63)

Indexed As: Nuport Holdings Ltd., Re

Newfoundland and Labrador Supreme Court

Trial Division

Green, C.J.T.D.

April 25, 2003.

Summary:

Nuport purchased undeveloped land from Duff. By agreement, a portion of the pur­chase price was Duff's right to choose three serviced building lots when the land was developed. There was no time frame and no obligation to develop. Twenty five years later, the lands had never been developed and Nuport wished to sell the lands. Nuport applied under the Quieting of Titles Act for a certificate of title. Duff's Estate claimed a vendor's lien to secure the obligation to convey three lots. At issue on a preliminary determination was whether Duff's Estate had an interest in the lands and, if so, whether a certificate of title could be issued subject to that interest or at all.

The Newfoundland and Labrador Supreme Court, Trial Division, held that the right to three lots could ground a vendor's lien and the lien was not defeated by any limitation period, laches, equitable defences or the rule against perpetuities. Accordingly, the court could not issue a certificate of title free and clear of the vendor's lien claim.

Limitation of Actions - Topic 520

Equitable limitation periods - Laches - General - The Newfoundland and Labrador Supreme Court, Trial Division, stated that "a court may refuse to enforce an equitable right where the plaintiff has slept on his rights and acquiesced in the actions of the defendant. The period of acquiescence must either be so long as to amount to evidence of abandonment of the claim and approbation of the defendant's actions or, though not amounting to desuetude, is nevertheless of such a nature that the lapse of time has caused irremediable prejudice to the defendant, making it unfair to require the defendant to respond to the stale claim" - See paragraph 69.

Perpetuities - Topic 503

Rule against perpetuities - General prin­ciples - Purpose of rule - The Newfound­land and Labrador Supreme Court, Trial Division, stated that "the rule against per­petuities is a rule invalidating proprietary interests which vest too remotely. It does not invalidate interests which simply last too long. The basic rule is that every future interest in land must be capable of vesting, if at all, within 21 years after its creation or within 21 years after the expir­ation of the life or lives of a designated person or persons in being at the time of its creation. ... The effect of, and the pur­pose behind, the rule is to prevent persons from creating interests in land which effec­tively render the land inalienable for inor­dinate periods of time thereby taking it out of the marketplace." - The court held that a vendor's lien, arising by operation of law on equitable principles, was not subject to the rule against perpetuities - See para­graphs 73 to 88.

Perpetuities - Topic 708

Rule against perpetuities - Application of rule in general - Contingent interests - The Newfoundland and Labrador Supreme Court, Trial Division, held that a vendor's lien did not create a contingent interest to which the rule against perpetuities applied - See paragraphs 83 to 84.

Perpetuities - Topic 1792

Rule against perpetuities - Interests to which the rule does not apply - Vendor's lien - [See Perpetuities - Topic 503 ].

Real Property - Topic 5090

Title - Quieting of title - Jurisdiction re adverse claimant - The Newfoundland and Labrador Supreme Court, Trial Division, stated that its jurisdiction to deal with adverse claims in a quieting of titles appli­cation was limited to whether or not a petitioner should be granted a certificate of title - The court lacked jurisdiction to decide the rights of the adverse claimant to the property - See paragraphs 11 to 12.

Real Property - Topic 5092

Title - Quieting of title - Circumstances when not applicable - Nuport purchased undeveloped land from Duff - By agree­ment, a portion of the purchase price was Duff's right to choose three serviced build­ing lots when the land was developed - There was no time frame and no obligation to develop - Twenty five years later, Nu­port wished to sell the as yet undeveloped lands and applied under the Quieting of Titles Act for a certificate of title - Duff's Estate claimed a vendor's lien to secure the obligation to convey three lots - At issue on a preliminary determination was whether Duff's Estate had an interest in the lands and, if so, whether a certificate of title could be issued subject to that interest or at all - The Newfoundland and Labrador Supreme Court, Trial Division, held that the right to the lots could create a vendor's lien - The lien was not defeated by any limitation period, laches or other equitable defences or the rule against perpetuities - Accordingly, the court could not issue a certificate of title free and clear of the vendor's lien claim.

Sale of Land - Topic 7785

Remedies of vendor - Vendor's lien - When available - The Newfoundland and Labrador Supreme Court, Trial Division, stated that "a vendor's lien for unpaid purchase money arises by operation of equitable principles the moment a contract for the sale of the property is made, and constitutes an equitable interest in the land until paid or discharged even where the conveyance of the property has subsequently been executed and the pur­chase money is expressed in the convey­ance to have been paid and received" - Existence of a vendor's lien did not depend upon default by the purchaser nor a declaration by the court that a lien existed - Such a proposition confused existence with enforcement - Further, a vendor's lien could secure non-cash con­sideration - See paragraphs 37 to 64.

Cases Noticed:

Coleman, Re (1934), 13 Nfld. L.R. 149 (T.D.), refd to. [para. 12].

Aucoin, Re (1982), 38 Nfld. & P.E.I.R. 328; 108 A.P.R. 328 (Nfld. T.D.), refd to. [para. 13].

Rousselle et al., Re (2001), 208 Nfld. & P.E.I.R. 42; 624 A.P.R. 42 (Nfld. T.D.), refd to. [para. 13].

Board of Education of Bonavista-Trinity-Placentia Integrated School District v. United Church of Little Catalina (1994), 124 Nfld. & P.E.I.R. 1; 384 A.P.R. 1 (Nfld. C.A.), refd to. [para. 13].

Lookout Development Co. v. Nevis (Ben) International Holdings Ltd. (1982), 38 Nfld. & P.E.I.R. 383; 108 A.P.R. 383 (Nfld. C.A.), refd to. [para. 37].

Hole, Re, [1948] 4 D.L.R. 419 (Man. K.B.), refd to. [para. 40].

Gordon v. Hipwell, 1952 CarswellBC 33 (C.A.), refd to. [para. 43].

National Trust Co. and Bouckhuyt et al., Re, [1987] O.J. No. 323 (H.C.), refd to. [para. 46].

Ward v. Wilbur (1898), 25 O.A.R. 262 (C.A.), refd to. [para. 50].

Green v. Ward (1899), 29 S.C.R. 572, refd to. [para. 51].

Ahone v. Holloway, [1988] B.C.J. No. 1603 (C.A.), refd to. [para. 52].

Indevco Properties Ltd. v. Franks (J.B.) Management Co. (1989), 63 D.L.R.(4th) 398 (B.C.C.A.), refd to. [para. 54].

Paine v. Chapman (1857), 6 Gr. 338, refd to. [para. 55].

Spencer v. Spencer (1913), 23 Man.R. 461 (K.B.), refd to. [para. 55].

K.M. v. H.M., [1992] 3 S.C.R. 6; 142 N.R. 321; 57 O.A.C. 321, refd to. [para. 69].

Hollett v. Hollett (1993), 106 Nfld. & P.E.I.R. 271; 334 A.P.R. 271 (Nfld. T.D.), refd to. [para. 69].

Laurin v. Iron Ore Co. of Canada (1977), 19 Nfld. & P.E.I.R. 111; 50 A.P.R. 111 (Nfld. T.D.), refd to. [para. 73].

Ronald v. Lillard, 1915 CarswellMan 117, refd to. [para. 77].

Hully Gully Ltd. v. Sunbelt Business Centres (Canada) Inc., [2001] O.T.C. 109; 2001 CarswellOnt 503 (Sup. Ct.), refd to. [para. 77].

Metropolitan Homes Ltd. v. Politzer (1975), 3 N.R. 621; 54 D.L.R.(3d) 376 (S.C.C.), refd to. [para. 80].

London and Southwestern Railway Co. v. Gomm (1882), 20 Ch. D. 562 (C.A.), refd to. [para. 80].

Sharpe v. Durrant (1911), 55 Sol. Jo. 423, refd to. [para. 86].

Thomas v. Thomas (1902), 87 L.T. 58 (C.A.), refd to. [para. 86].

Freeborn v. Goodman, [1969] S.C.R. 923, refd to. [para. 94].

Boulton v. Gillespie (1860), 8 Gr. 223, refd to. [para. 94].

Authors and Works Noticed:

Anger and Honsberger, The Law of Real Property (2nd Ed. 1985), vol. 2, p. 509 [para. 75].

Di Castri, The Law of Vendor and Pur­chaser (1988), vol. 2, para. 861 [paras. 42, 49].

Counsel:

Sandra Gogol, for Nuport Holdings Ltd.;

Ronald Noseworthy, Q.C., and Katie O'Neill, for the Michael Duff Estate.

This application was heard at St. John's, Newfoundland and Labrador, before Green, C.J.T.D., of the Newfoundland and Labrador Supreme Court, Trial Division, who delivered the following judgment on April 25, 2003.