Steiner et al. v. E.H.D. Investments Ltd., (1977) 6 A.R. 113 (CA)

• Judge: McGillivray, C.J.A., Prowse and McDonald, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: September 08, 1977
• Citations: (1977), 6 A.R. 113 (CA)

Steiner v. EHD Inv. Ltd. (1977), 6 A.R. 113 (CA)

MLB headnote and full text

Steiner et al. v. E.H.D. Investments Ltd.

Indexed As: Steiner et al. v. E.H.D. Investments Ltd.

Alberta Supreme Court

Appellate Division

McGillivray, C.J.A., Prowse and McDonald, JJ.A.

September 8, 1977.

Summary:

This case arose out of an agreement for sale with respect to 40 acres of land. The 40 acres of land was part of an undivided quarter-section of land (160 acres). In the agreement for sale the owner of the land agreed to obtain subdivision approval. The seller failed to apply for subdivision approval. The buyer commenced an action for damages and for specific performance of the seller's undertaking to obtain subdivision approval. The trial court dismissed the plaintiff's action for specific performance because the buyer had repudiated the contract.

On appeal to the Alberta Court of Appeal the appeal was allowed and the judgment of the trial court was set aside. The Alberta Court of Appeal held that the seller failed to establish the defence of repudiation because of the lack of proof that the seller advised the buyer that the seller was accepting the repudiation - see paragraphs 13 and 14.

The Alberta Court of Appeal allowed the buyer's claim for an order of specific performance with respect to the seller's undertaking to obtain subdivision approval. The Alberta Court of Appeal stated that in the event that the seller's application for subdivision approval is unsuccessful then the plaintiff is entitled to damages to be assessed - see paragraphs 26 and 27.

McDonald, J.A., dissenting, in the Alberta Court of Appeal, would have ordered a new trial in the issue of repudiation and would have dismissed the buyer's claim for specific performance.

Sale of Land - Topic 8563

Remedies of purchaser - Specific performance of seller's undertakings - Undertaking by a seller of land to obtain subdivision approval - An owner of a quarter-section of land (160 acres) agreed to sell 40 acres to the plaintiff and the owner also agreed to obtain subdivision approval - The owner failed to apply for subdivision approval - The Alberta Court of Appeal held that the seller was required to use his best efforts to obtain subdivision approval and the Court of Appeal granted the buyer an order for specific performance of the undertaking - The Alberta Court of Appeal stated that in the event the seller's application for subdivision approval is unsuccessful then the plaintiff is entitled to damages to be assessed - See paragraphs 26 to 27.

Sale of Land - Topic 3446

Contract - Discharge - Repudiation of the contract by the buyer - Requirement of acceptance of repudiation by the seller - The Alberta Court of Appeal stated that a seller who alleges repudiation of a contract for the sale of land must show that the buyer repudiated the contract, that the seller accepted the repudiation and that the seller advised the buyer that he was accepting the repudiation - See paragraph 20.

Cases Noticed:

New Zealand Shipping Company v. Societe des Ateliers et Chantiers de France, [1919] A.C. 1, folld. [para. 11].

Wroth v. Tyler, [1973] 2 W.L.R. 405, folld. [paras. 25, 86].

Turney v. Zhilka, [1959] S.C.R. 578; 18 D.L.R.(2d) 447, folld. [paras. 50, 68].

Barnett v. Harrison (1975), 5 N.R. 131; 57 D.L.R.(3d) 225, folld. [paras. 51, 67].

O'Reilly v. Marketers Diversified Inc., [1969] S.C.R. 741, folld. [paras. 52, 66].

Longlands Farm, Long Common, Bodley, Hants, Alford v. Superior Developments Ltd., [1968] 3 All E.R. 552, folld. [para. 54].

Hargreaves Transport Ltd. v. Lynch, [1969] 1 W.L.R. 215; [1969] 1 All E.R. 455, folld. [para. 55].

Brauer & Co. (Great Britain) v. James Clark (Brush Materials) Ltd., [1952] 2 All E.R. 497, folld. [para. 56].

Windschuegel v. Pickering (1950), 84 Lloyd's L.L.R. 89, folld. [para. 57].

Societe D'Avances Commerciales (London) Ltd. v. A. Besse & Co. (London) Ltd., [1952] 1 T.L.R. 644, folld. [para. 58].

Smallman v. Smallman, [1971] 3 W.L.R. 588; [1971] 3 All E.R. 717; [1972] Fam. 25, folld. [para. 60].

Aberfoyle Plantations Ltd. v. Cheng, [1960] A.C. 115; [1959] 3 W.L.R. 1011; 3 All E.R. 910, folld. [para. 62].

Re Sandwell Park Colliery Co., [1929] 1 Ch. 277, refd to. [para. 62].

F.T. Developments Ltd. v. Sherman, [1969] S.C.R. 203, refd to. [para. 62].

Ross Smythe & Co. Ltd. v. Bailey, Son & Co., [1940] 3 All E.R. 60, folld. [para. 72].

Hanes v. Wawanesa Mutual Insurance Co., [1963] S.C.R. 154; 36 D.L.R.(2d) 718, folld. [para. 72].

Scott v. Cresswell, [1975] 3 W.W.R. 193; 56 D.L.R.(3d) 268 (A.C.A.), folld. [para. 72].

Sweet and Maxwell Ltd. v. Universal New Services Ltd., [1964] 2 Q.B. 699; [1964] 3 W.L.R. 356; 3 All E.R. 30 (C.A.), folld. [para. 72].

Spettabile Consorzio Veneziano di Armamento e Navigazione v. Northhumberland Ship Building Co. Ltd. (1919), 121 L.T. 628 (C.A.), folld. [para. 72].

Osmack and Domestic Mining Co. Ltd. v. Stan Reynolds Auto Sales Ltd. et al., [1974] 1 W.W.R. 408, folld. [para. 74].

Woking Corporation v. Heather, [1906] 2 Ch. 532, folld. [para. 83].

Authors and Works Noticed:

Cheshire and Fifoot, Law of Contract (9th Ed.), (1976), p. 137 [para. 53]; p. 570 [para. 72]; p. 573 [para. 74].

Counsel:

D.J. Rode, for the appellants;

W.E. Wilson, for the respondent.

This appeal was heard by McGILLIVRAY, C.J.A., PROWSE and McDONALD, JJ.A., at Edmonton, Alberta. The judgment of the Alberta Court of Appeal was delivered on September 8, 1977 and the following opinions were filed:

McGILLIVRAY, C.J.A. - see paragraphs 1 to 30.

McDONALD, J.A., dissenting - see paragraphs 31 to 87.

PROWSE, J.A., concurred with McGILLIVRAY, C.J.A.