Proznick v. Whitmore et al., 2002 BCCA 117

• Judge: Prowse, Hall and Hollinrake, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: January 14, 2002
• Jurisdiction: British Columbia
• Citations: 2002 BCCA 117;(2002), 164 B.C.A.C. 311 (CA)

Proznick v. Whitmore (2002), 164 B.C.A.C. 311 (CA);

    268 W.A.C. 311

MLB headnote and full text

Temp. Cite: [2002] B.C.A.C. TBEd. MR.022

Bernie Proznick (plaintiff/appellant) v. Frederick Whitmore, Allan Whitmore, Bhupinder Singh Johal and Kamal Kaur Johal (defendants/respondents)

(CA025890; 2002 BCCA 117)

Indexed As: Proznick v. Whitmore et al.

British Columbia Court of Appeal

Prowse, Hall and Hollinrake, JJ.A.

February 27, 2002.

Summary:

The plaintiff was one of two intended purchasers of the shares of a taxi business. The plaintiff borrowed the funds to pay his share. His partner defaulted on his payments. Pursuant to an escrow agreement, the vendors rescinded the contract of sale and the shares were reconveyed to them. The plaintiff sued for relief from forfeiture of the amount of his payment.

The British Columbia Supreme Court dismissed the action. The plaintiff appealed.

The British Columbia Court of Appeal, Hollinrake, J.A., dissenting, allowed the appeal and granted judgment to the plaintiff.

Contracts - Topic 3944

Performance or breach - Relief from for­feiture - When available - The plaintiff and his partner agreed to purchase the shares of a business - Each purchaser was to contri­bute $125,000 - The plaintiff borrowed the money - His partner was to pay his share by making five $25,000 payments to the vendors (the Ws and the Js) - The partner defaulted - The plaintiff could raise no more - In all the Ws received $73,000 for their shares - Pursu­ant to escrow provi­sions, the vendors rescinded the contract and the shares were reconveyed to them - The Ws sold their returned shares to the Js for $60,000 - The British Columbia Court of Appeal granted the plaintiff relief from forfeiture, ordering the Ws to repay to the plaintiff the market value of the shares that were reconveyed to them ($60,000).

Equity - Topic 1068

Equitable relief - Relief from forfeiture - Grounds for relief - [See Contracts - Topic 3944 ].

Cases Noticed:

Casano v. C & K Express Inc. (1991), 4 B.C.A.C. 316; 9 W.A.C. 316; 57 B.C.L.R.(2d) 62 (C.A.), consd. [para. 12].

Cronholm v. Cole, [1928] 3 D.L.R. 321 (S.C.C.), refd to. [para. 12].

Stockloser v. Johnson, [1954] 1 All E.R. 630, refd to. [para. 13].

British Columbia Development Corp. v. N.A.B. Holdings Ltd. (1968), 30 D.L.R.(4th) 560 (B.C.C.A.), refd to. [para. 24].

Counsel:

B.G. Bergh, for the appellant;

A.E. King, for the respondents.

This appeal was heard before Prowse, Hall and Hollinrake, JJ.A., of the British Colum­bia Court of Appeal, at Vancouver, British Columbia, on January 14, 2002. The deci­sion of the court was delivered on February 27, 2002, when the following opinions were filed:

Hall, J.A. (Prowse, J.A., concurring) - see paragraphs 1 to 17;

Hollinrake, J.A., dissenting - see para­grap­hs 18 to 28.