Streek et al. v. Chun, (2015) 436 N.B.R.(2d) 147 (TD)

Judge:French, J.
Court:Court of Queen's Bench of New Brunswick
Case Date:October 15, 2014
Jurisdiction:New Brunswick
Citations:(2015), 436 N.B.R.(2d) 147 (TD);2015 NBQB 82
 
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Streek v. Chun (2015), 436 N.B.R.(2d) 147 (TD);

    436 R.N.-B.(2e) 147; 1139 A.P.R. 147

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Temp. Cite: [2015] N.B.R.(2d) TBEd. JN.010

Renvoi temp.: [2015] N.B.R.(2d) TBEd. JN.010

Michael Streek and Streekraft Holdings Limited (claimants) v. Yongho Chun (defendant)

(SJC/232/14; 2015 NBQB 82; 2015 NBBR 82)

Indexed As: Streek et al. v. Chun

Répertorié: Streek et al. v. Chun

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Saint John

French, J.

April 15, 2015.

Summary:

Résumé:

This was an appeal by way of a new hearing under the Small Claims Act. The claimants sought payment for expenses incurred from "the defendant's breach of agreement" to sell all his shares in 640248 N.B. Ltd. The only asset of 640248 N.B. Ltd. was a 24 unit apartment building. At issue was whether the claimants had established that an email exchange gave rise to an enforceable contract.

The New Brunswick Court of Queen's Bench, Trial Division, dismissed the claim, holding that no enforceable agreement had been reached where the court could find no certainty of terms and no intention to create legal relations. The court made no order as to costs.

Contracts - Topic 1465

Formation of contract - Intention - Intention to create a legal relationship - The claimants sought payment for expenses incurred from "the defendant's breach of agreement" to sell all his shares in 640248 N.B. Ltd. - 640248 N.B. Ltd.'s only asset was a 24 unit apartment building - At issue was whether the claimants had established that an email exchange gave rise to an enforceable contract - The New Brunswick Court of Queen's Bench, Trial Division, dismissed the claim - The court held that the parties did not intend to be contractually bound; this would not occur unless and until their lawyers had prepared formal agreements acceptable to both parties - The court stated that "[t]his is a conclusion that is not to be reached lightly. It is clear that the courts should seek to give legal effect to agreements reached by parties. ... the documents to be prepared by 'the lawyers' were more than a mere formality - that they would do more than merely record the elements of a transaction already agreed upon - instead they would address the necessary terms of an agreement that had not even been identified by the parties." - The court considered the extent to which both parties had relied on legal counsel respecting business issues in determining their intention to create legal relations - See paragraphs 39 to 46.

Contracts - Topic 1505

Formation of contract - Consensus or agreement - Essential terms - What constitute - The New Brunswick Court of Queen's Bench, Trial Division, stated that "[f]or an agreement to be an enforceable contract, there must be agreement in relation to all the essential terms. What terms are essential depends on the circumstances. The essential terms of a contract have been referred to as the 3 P's, namely, price, parties and property ... however, whether an asserted agreement is incomplete because an essential term(s) is missing will depend on the circumstances ... . It is important to note that in determining this issue, and other questions regarding whether a contract has been formed, the determination is to be made objectively - from the perspective of the reasonable bystander in light of all the circumstances." - See paragraphs 28 and 29.

Contracts - Topic 1505

Formation of contract - Consensus or agreement - Essential terms - What constitute - The claimants sought payment for expenses incurred from "the defendant's breach of agreement" to sell all his shares in 640248 N.B. Ltd. - 640248 N.B. Ltd.'s only asset was a 24 unit apartment building - At issue was whether the claimants had established that an email exchange gave rise to an enforceable contract - The New Brunswick Court of Queen's Bench, Trial Division, dismissed the claim, holding that no enforceable agreement had been reached where, inter alia, the court could find no certainty of terms - The court stated that "[p]erhaps the best example of a missing term, and most significantly based on the evidence presented by Mr. Chun [the defendant], there was no term respecting the continuation or release of Mr. Chun's guarantee to the bank - in the circumstances of this case, a term relating to Mr. Chun's continued financial obligations to RBC (potentially for an indeterminate period of time), is an essential term - especially where Mr. Chun would no longer have had any control of or a beneficial interest in the business or affairs of the company following the transfer of his shares to a purchaser who spent over six months to learn that he could not obtain financing unless Mr. Chun continued as guarantor." - See paragraphs 28 to 38.

Contrats - Cote 1465

Formation du contrat - Intention - Intention de créer un rapport juridique - [Voir Contracts - Topic 1465 ].

Construction - Cote 1505

Achèvement des travaux - Devoir d'achever les travaux - Conditions préalables au paiement - [Voir Contracts - Topic 1505 ].

Cases Noticed:

Girouard v. Druet (2012), 386 N.B.R.(2d) 281; 999 A.P.R. 281; 2012 NBCA 40, refd to. [para. 28].

Shunjing Trading Inc. v. E.B. Engineered Panels and Controls Inc. et al. (2011), 370 N.B.R.(2d) 1; 956 A.P.R. 1; 2011 NBCA 29, refd to. [para. 28].

United Gulf Developments Ltd. et al. v. Iskandar et al. (2008), 267 N.S.R.(2d) 318; 853 A.P.R. 318; 2008 NSCA 71, refd to. [para. 28].

Neger v. Erez et al., [2002] O.T.C. Uned. 499 (Sup. Ct.), affd. [2004] O.A.C. Uned. 302 (C.A.), dist. [para. 45].

Pollard Banknote Ltd. v. Moss, [1986] B.C.J. No. 1804, dist. [para. 45].

Counsel:

Avocats:

Claimant, per se;

John M. Henderson, for the defendant.

This case was heard on October 15, 2014, by French, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Saint John, who delivered the following decision on April 15, 2015.

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