Self v. Brignoli, (2012) 314 N.S.R.(2d) 140 (SC)

JudgeCoady, J.
CourtSupreme Court of Nova Scotia (Canada)
Case DateFebruary 24, 2012
JurisdictionNova Scotia
Citations(2012), 314 N.S.R.(2d) 140 (SC);2012 NSSC 81

Self v. Brignoli (2012), 314 N.S.R.(2d) 140 (SC);

    994 A.P.R. 140

MLB headnote and full text

Temp. Cite: [2012] N.S.R.(2d) TBEd. MR.031

Anton Self (plaintiff) v. Christopher Thayer Burr Brignoli, Administrator of the Estate of Richard Brignoli, Deceased (defendant)

(Hfx. No. 311076; 2012 NSSC 81)

Indexed As: Self v. Brignoli

Nova Scotia Supreme Court

Coady, J.

February 24, 2012.

Summary:

In 2000, the plaintiff agreed to purchase land for $66,000. Brignoli was to provide the funds and take title in his name. The plaintiff alleged an unwritten agreement that Brignoli would sell the land to him if he wished to sell or died. The plaintiff had his lawyer prepare a draft option to purchase, which he alleged was sent to Brignoli. The agreement was never signed. Brignoli died in 2006. In 2009, Brignoli's estate agreed to sell the land to the province for $90,000. The plaintiff sued to enforce the alleged option to purchase. The estate denied the existence of any option and pleaded the Statute of Frauds respecting the unwritten agreement. The plaintiff relied on the doctrine of part performance to defeat the Statute of Frauds defence.

The Nova Scotia Supreme Court dismissed the action. The Statute of Frauds defeated the plaintiff's claim based on an unwritten agreement. There were no acts of part performance to defeat the Statute of Frauds defence.

Contracts - Topic 8005

Statute of Frauds - Part performance - General - In 2000, the plaintiff agreed to purchase land, with Brignoli to provide the funds and take title - The plaintiff alleged an unwritten agreement that Brignoli would sell the land to him if he ever decided to sell or died - Brignoli died in 2006 - In 2009, his estate agreed to sell the land to the province - The plaintiff sued the estate to enforce the alleged option - The estate pleaded the Statute of Frauds as rendering any agreement concerning an interest in land unenforceable where it was not reduced to writing and signed - The plaintiff relied on acts of part performance unequivocally attributable to the alleged option agreement to defeat the Statute of Frauds defence - The Nova Scotia Supreme Court dismissed the action - The acts of performance alleged by the plaintiff were not only not equivocally related to an alleged option agreement, they were not even acts of part performance - Accordingly, the alleged unsigned agreement was rendered unenforceable by the Statute of Frauds.

Executors and Administrators - Topic 5700

Actions by and against representatives - Evidence - Claim by or against estate - Corroboration requirement - The plaintiff claimed that he and Brignoli orally agreed that the plaintiff could purchase Brignoli's lands if he died - Brignoli died - The plaintiff sued Bignoli's estate to enforce the alleged agreement - The Nova Scotia Supreme Court held that s. 45 of the Evidence Act applied to require that the alleged agreement be corroborated by other material evidence - See paragraphs 20 to 24.

Sale of Land - Topic 1351

The contract - Necessity for writing - General - Part performance in lieu of writing - What constitutes part performance - [See Contracts - Topic 8005 ].

Cases Noticed:

Hope v. Tabensky (2008), 272 N.S.R.(2d) 199; 869 A.P.R. 199 (C.A.), refd to. [para. 9].

Carvery v. Fletcher (1987), 76 N.S.R.(2d) 307; 189 A.P.R. 307 (T.D.), refd to. [para. 12].

Federal Savings Credit Union Ltd. v. Hessian et al. (1979), 36 N.S.R.(2d) 166; 64 A.P.R. 166 (T.D.), refd to. [para. 14].

Lohnes v. Daw et al. (1968), 68 D.L.R.(2d) 730 (N.S.T.D.), refd to. [para. 14].

Deglman v. Brunet Estate, [1954] S.C.R. 725, refd to. [para. 15].

Steadman v. Steadman, [1974] 2 All E.R. 977 (H.L.), refd to. [para. 16].

Neighbourhoods of Cornell Inc. v. 14401066 Ontario Inc. et al., [2003] O.T.C. 689 (Gen. Div.), refd to. [para. 17].

Alvi v. Lal, [1990] O.J. No. 739, refd to. [para. 17].

Samson Estate v. Tanner (1984), 66 N.S.R.(2d) 119; 152 A.P.R. 119 (C.A.), refd to. [para. 22].

Burns Estate v. Mellon (2000), 133 O.A.C. 83 (C.A.), refd to. [para. 23].

Harvey Estate, Re (2006), 243 N.S.R.(2d) 109; 772 A.P.R. 109; 2006 NSSC 118, refd to. [para. 24].

Counsel:

Anton Self, on his own behalf;

Colin Bryson, for the defendant.

This action was heard on January 17-19, 2012, at Halifax, N.S., before Coady, J., of the Nova Scotia Supreme Court, who delivered the following judgment on February 24, 2012.

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4 practice notes
  • MacKinnon v MacKinnon (Estate of),
    • Canada
    • Supreme Court of Nova Scotia (Canada)
    • September 24, 2021
    ...They are admissible.  On this point, reference is made to Willisko v. Pottie Estate, 2014 NSSC 389 and Self v. Brignoli Estate, 2012 NSSC 81. [57]      I have come to the conclusion that the notes are compliant with s. 8A of the Wills Act even before considerat......
  • Self v. Brignoli, [2012] N.S.R.(2d) Uned. 91
    • Canada
    • Nova Scotia Supreme Court of Nova Scotia (Canada)
    • April 13, 2012
    ...Bryson, Q.C. represented the defendant. I released a decision on February 24, 2012 which dismissed Mr. Self's action in all respects. (2012 NSSC 81). The defendant seeks an award of costs. [2] Mr. Self acknowledges that the defendants are entitled to $3,000 in past cost awards. He accepts t......
  • 101252 P.E.I. Inc. v. Brekka, (2013) 334 N.S.R.(2d) 138 (SC)
    • Canada
    • Nova Scotia Supreme Court of Nova Scotia (Canada)
    • September 11, 2013
    ...- See paragraphs 17 to 33. Cases Noticed: Steadman v Steadman, [1976] A.C. 536 (H.L.), refd to. [para. 21]. Self v. Brignoli (2012), 314 N.S.R.(2d) 140; 994 A.P.R. 140; 2012 NSSC 81, agreed with [para. Statutes Noticed: Statute of Frauds, R.S.N.S. 1989, c. 442, sect. 7(d) [para. 17]. Author......
  • 101252 P.E.I. v. Brekka, (2015) 363 N.S.R.(2d) 273 (CA)
    • Canada
    • Nova Scotia Court of Appeal of Nova Scotia (Canada)
    • February 17, 2015
    ...refd to. [para. 37]. Carvery v. Fletcher (1987), 76 N.S.R.(2d) 307; 189 A.P.R. 307 (T.D.), refd to. [para. 39]. Self v. Brignoli (2012), 314 N.S.R.(2d) 140; 994 A.P.R. 140; 2012 NSSC 81, refd to. [para. Innocente v. Canada (Attorney General) (2012), 315 N.S.R.(2d) 273; 998 A.P.R. 273; 2012 ......
4 cases
  • MacKinnon v MacKinnon (Estate of),
    • Canada
    • Supreme Court of Nova Scotia (Canada)
    • September 24, 2021
    ...They are admissible.  On this point, reference is made to Willisko v. Pottie Estate, 2014 NSSC 389 and Self v. Brignoli Estate, 2012 NSSC 81. [57]      I have come to the conclusion that the notes are compliant with s. 8A of the Wills Act even before considerat......
  • Self v. Brignoli, [2012] N.S.R.(2d) Uned. 91
    • Canada
    • Nova Scotia Supreme Court of Nova Scotia (Canada)
    • April 13, 2012
    ...Bryson, Q.C. represented the defendant. I released a decision on February 24, 2012 which dismissed Mr. Self's action in all respects. (2012 NSSC 81). The defendant seeks an award of costs. [2] Mr. Self acknowledges that the defendants are entitled to $3,000 in past cost awards. He accepts t......
  • 101252 P.E.I. Inc. v. Brekka, (2013) 334 N.S.R.(2d) 138 (SC)
    • Canada
    • Nova Scotia Supreme Court of Nova Scotia (Canada)
    • September 11, 2013
    ...- See paragraphs 17 to 33. Cases Noticed: Steadman v Steadman, [1976] A.C. 536 (H.L.), refd to. [para. 21]. Self v. Brignoli (2012), 314 N.S.R.(2d) 140; 994 A.P.R. 140; 2012 NSSC 81, agreed with [para. Statutes Noticed: Statute of Frauds, R.S.N.S. 1989, c. 442, sect. 7(d) [para. 17]. Author......
  • 101252 P.E.I. v. Brekka, (2015) 363 N.S.R.(2d) 273 (CA)
    • Canada
    • Nova Scotia Court of Appeal of Nova Scotia (Canada)
    • February 17, 2015
    ...refd to. [para. 37]. Carvery v. Fletcher (1987), 76 N.S.R.(2d) 307; 189 A.P.R. 307 (T.D.), refd to. [para. 39]. Self v. Brignoli (2012), 314 N.S.R.(2d) 140; 994 A.P.R. 140; 2012 NSSC 81, refd to. [para. Innocente v. Canada (Attorney General) (2012), 315 N.S.R.(2d) 273; 998 A.P.R. 273; 2012 ......

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