Sadaka v. Saleh, (2011) 386 Sask.R. 128 (QB)

• Judge: Zarzeczny, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: November 02, 2011
• Jurisdiction: Saskatchewan
• Citations: (2011), 386 Sask.R. 128 (QB);2011 SKQB 416

Sadaka v. Saleh (2011), 386 Sask.R. 128 (QB)

MLB headnote and full text

Temp. Cite: [2011] Sask.R. TBEd. NO.056

Georgette Sadaka (plaintiff) v. Talaat Saleh (defendant)

(2008 Q.B.G. No. 1645; 2011 SKQB 416)

Indexed As: Sadaka v. Saleh

Saskatchewan Court of Queen's Bench

Judicial Centre of Regina

Zarzeczny, J.

November 2, 2011.

Summary:

Sadaka suggested she sell, and Saleh purchase for $20,000, a residential property she owned. They made a verbal agreement to do so. Saleh paid $7,000 as a down payment and moved into possession. The parties disputed the date for the payment of the balance of the purchase price. Saleh refused Sadaka's tenancy proposal, and "later" tendered the balance of the purchase price plus $1,000. A rentalsman dismissed Sadaka's request for a writ of possession. Sadaka, as plaintiff, sought "an order that the defendant must vacate the property". In 2010, the property was flooded and became unliveable. The house was "condemned" by the Department of Health. Saleh moved to Alberta.

The Saskatchewan Court of Queen's Bench concluded that a valid agreement for purchase and sale existed. In the event that Saleh did not pay the balance of the purchase price in full and within 60 days, Sadaka could proceed with an application for the cancellation of the agreement under the Agreements of Sale Cancellation Act.

Contracts - Topic 1104

Formation of contract - General principles - Oral contracts - [See Sale of Land - Topic 1351 ].

Contracts - Topic 7952

Statute of frauds - General - When applicable - [See Sale of Land - Topic 1351 ].

Contracts - Topic 8008

Statute of Frauds - Part performance - When available - [See Sale of Land - Topic 1351 ].

Sale of Land - Topic 1326

The contract - Necessity for writing - General - Statute of Frauds - Circumstances not within statute - [See Sale of Land - Topic 1351 ].

Sale of Land - Topic 1351

The contract - Necessity for writing - Part performance in lieu of writing - What constitutes part performance - The plaintiff suggested she sell and the defendant purchase a residential property she owned, for $20,000 - They made a verbal agreement to do so - The defendant paid $7,000 down - He moved into possession and made improvements - The date for the payment of the balance of the purchase price became disputed - The defendant refused the plaintiff's tenancy proposal, and "later" tendered the balance of the purchase price plus $1,000 - The plaintiff sought "an order that the defendant must vacate the property" - The Saskatchewan Court of Queen's Bench concluded that although the agreement was unenforceable by action, it was a valid agreement - It could be, and had been, raised by the defendant in his defence of the plaintiff's claim for possession and therefore the Statute of Frauds did not apply to render it unenforceable - Alternatively, the defendant had established that even if he had commenced an action to enforce the verbal agreement, he would be entitled to the benefit of the equitable doctrine of part performance - In particular, the plaintiff's concession that the intention of the parties was to enter into an agreement eliminated any concern that the relationship might have been one of landlord and tenant - See paragraphs 28 and 29.

Cases Noticed:

Barber and Barber v. Glen and Glen, [1987] 6 W.W.R. 689; 59 Sask.R. 49 (Sask. C.A.), consd. [para. 25].

Chapman v. Kopitosky, [1972] 6 W.W.R. 525; 31 D.L.R.(3d) 479 (Sask. Q.B.), refd to. [para. 27].

Hill v. Nova Scotia (Attorney General), [1997] 1 S.C.R. 69; 206 N.R. 299; 157 N.S.R.(2d) 81; 462 A.P.R. 81, refd to. [para. 30].

Steadman v. Steadman, [1976] A.C. 536 (H.L.), refd to. [para. 30].

Bell et al. v. Guaranty Trust Co. of Canada et al. (1983) 30 Sask.R. 246; 4 D.L.R.(4th) 624 (C.A.), application for rehearing dismissed (1984), 35 Sask.R. 82; 13 D.L.R.(4th) 477, leave to appeal refused (1984) 57 N.R. 12, refd to. [para. 32].

Silver Lake Farms Inc. v. Saskatchewan (2001), 212 Sask.R. 177; 2001 SKQB 515, refd to. [para. 32].

Halko v. Riel et al. (2004), 247 Sask.R. 55; 2004 SKQB 126, consd. [para. 33].

Authors and Works Noticed:

Anger, Harry D., Honsberger, John D., and LaForest, Anne Warner, Law of Real Property (3rd Ed. 2010), Looseleaf, para. 21:20.10 [para. 22].

Di Castri, Victor, The Law of Vendor and Purchaser (3rd Ed. 2007), Looseleaf, paras. 137, 138 [para. 24]; 141 [paras. 29, 31].

Law Reform Commission of Saskatchewan, Report on Disposal of English Statute Law in Saskatchewan (May 2006), generally, [para. 23].

Counsel:

Niel Halford, for the plaintiff;

Talaat Saleh, appearing on his own behalf.

This action was heard before Zarzeczny, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Regina, who delivered the following judgment dated November 2, 2011.