Smith v. Hasegawa, (2000) 278 A.R. 335 (ProvCt)

• Judge: LeGrandeur, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: November 29, 2000
• Citations: (2000), 278 A.R. 335 (ProvCt);2000 ABPC 194

Smith v. Hasegawa (2000), 278 A.R. 335 (ProvCt)

MLB headnote and full text

Temp. Cite: [2001] A.R. TBEd. JA.017

Wayne A. Smith (plaintiff) v. George M. Hasegawa (defendant)

(0002600349; 2000 ABPC 194)

Indexed As: Smith v. Hasegawa

Alberta Provincial Court

LeGrandeur, P.C.J.

November 29, 2000.

Summary:

In 1993 Smith paid Hasegawa a $500 deposit on a subdivision lot. Hasegawa issued a receipt. In 1998 Hasegawa sold the lot to a third party, without offering Smith an opportunity to purchase the land for the same price. Smith requested the deposit back. Hasegawa refused, and in 2000 Smith brought an action for the $500. Hasegawa argued that the transaction did not comply with s. 4 of the Statute of Frauds (requirement that action be within one year unless contract in writing), or alternatively that Smith's action was barred under the Limitations Act as having arisen in 1993, over six years previous.

The Alberta Provincial Court allowed the plaintiff's action.

Contracts - Topic 7952

Statute of Frauds - When applicable - In 1993 Smith paid Hasegawa a $500 deposit on a subdivision lot - Hasegawa issued a receipt - In 1998 Hasegawa sold the lot to a third party without offering Smith an opportunity to purchase the land for the same price - Hasegawa refused to return the deposit, and in 2000 Smith brought an action for the $500 - Hasegawa argued that the transaction did not comply with the Statute of Frauds (requirement that action be within one year unless contract in writing) - The Alberta Provincial Court allowed the action - The contract was a right of first refusal, which was an equitable interest in land under the Law of Property Act - The contract was an agreement relating to an interest in lands and therefore must comply with the Statute of Frauds.

Contracts - Topic 8025

Statute of Frauds - Memorandum - Generally - Sufficiency of - In 1993 Smith paid Hasegawa a $500 deposit on a subdivision lot - Hasegawa issued a receipt - In 1998 Hasegawa sold the lot without offering Smith an opportunity to purchase the land for the same price - Hasegawa refused to return the deposit, and in 2000 Smith brought an action for the $500 - Hasegawa argued that the transaction did not comply with the Statute of Frauds (requirement that action be within one year unless contract in writing) - The Alberta Provincial Court allowed the action - The contract was in writing - The receipt was a memorandum under the Statute - It identified the parties, the land in question and the price - Here, the price was payment for a right of first refusal, not a purchase price for the lot.

Limitation of Actions - Topic 2052

Actions in contract - Actions for debt - When time begins to run - In 1993 Smith paid Hasegawa a $500 deposit on a subdivision lot - Hasegawa issued a receipt - In 1998 Hasegawa sold the lot to a third party without offering Smith an opportunity to purchase for the same price - Smith requested the deposit back - Hasegawa refused, and in 2000 Smith brought an action for the $500 - Hasegawa argued that Smith's action was barred under the Limitations Act as having arisen in 1993, over six years previous - The Alberta Provincial Court allowed the action and entered judgment for the plaintiff - The limitation period started running when Hasegawa breached the agreement and sold the property in 1998 without offering the plaintiff a right of first refusal - The plaintiff's action was commenced within the statutory limitation period.

Cases Noticed:

Walker v. Cusack (1982), 16 Man.R.(2d) 114 (Q.B.), refd to. [para. 17].

MacKenzie v. Walsh, [1921] 1 W.W.R. 1017; 61 S.C.R. 312; 57 D.L.R. 24, refd to. [para. 18].

Standard Realty Co. v. Nicholson (1911), 24 O.L.R. 46 (C.A.), refd to. [para. 19].

Smith v. Morgan, [1971] 2 All E.R. 1500 (Ch. Div.), refd to. [para. 20].

Gosbell v. Archer (1835), 2 Ad. & El. 500; 111 E.R. 193; 4 L.J.K.B. 78, refd to. [para. 22].

Statutes Noticed:

Statute of Frauds (1677), 29 Car. 2, c. 3, sect. 4 [para. 15].

Counsel:

None disclosed.

This action was heard before LeGrandeur, P.C.J., of the Alberta Provincial Court, who delivered the following judgement on November 29, 2000.