Talisman Homes Ltd. v. Endicott, (2002) 321 A.R. 201 (QB)

• Judge: Lomas, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: August 06, 2002
• Citations: (2002), 321 A.R. 201 (QB);2002 ABQB 702

Talisman Homes Ltd. v. Endicott (2002), 321 A.R. 201 (QB)

MLB headnote and full text

Temp. Cite: [2002] A.R. TBEd. AU.049

Talisman Homes Ltd. (plaintiff) v. Leslie L. Endicott and Marlene E. Endicott (defendant)

(0001-14559; 2002 ABQB 702)

Indexed As: Talisman Homes Ltd. v. Endicott

Alberta Court of Queen's Bench

Judicial District of Calgary

Lomas, J.

August 6, 2002.

Summary:

The defendants contracted to purchase a show home from the plaintiff for $259,500. More than three months before the September 15, 1999, closing date, the defendants gave notice of their inability to complete. The defendants conceded forfeiture of their $5,000 deposit. On July 12, 1999, the plaintiff accepted the repudiation, reserving the right to sue for damages for breach of contract. The plaintiff resold the home for $234,000 in April 2000. The plaintiff sued for damages, including the sale price differential and the costs of carrying the home from the completion date until the resale date (including mortgage interest, taxes, utilities, etc.). The defendants pleaded that the plaintiff's minimal efforts to resell the home constituted a failure to mitigate.

The Alberta Court of Queen's Bench dismissed the plaintiff's action. The plaintiff could have resold the home before the September 15, 1999, closing date had it taken reasonable steps to mitigate, which it did not. Accordingly, the date for assessment of damages was September 15, 1999. The court accepted that the fair market value as of that date was the $262,900 list price, which was higher than the contract price. Accordingly, the plaintiff suffered no loss.

Damages - Topic 1042

Mitigation - In contract - What constitutes reasonable remedial measures - The defendants contracted to purchase a show home from the plaintiff for $259,500 - More than three months before the September 15, 1999, closing date, the defendants gave notice of their inability to complete - The defendants conceded forfeiture of their $5,000 deposit - On July 12, 1999, the plaintiff accepted the repudiation, reserving the right to sue for damages for breach of contract - The plaintiff resold the home for $234,000 in April 2000 - The plaintiff sued for damages, including the sale price differential and the costs of carrying the home from the completion date until the resale date (including mortgage interest, taxes, utilities, etc.) - The defendants pleaded that the plaintiff's minimal efforts to resell the home constituted a failure to mitigate - The Alberta Court of Queen's Bench dismissed the action - The plaintiff could have resold the home before the September 15, 1999, closing date had it taken reasonable steps to mitigate, which it did not - There was no justification for waiting to list the home for sale, for listing the home at a price higher than the contract price and in failing to contact persons who were interested in the home when the defendants contracted to buy it - Minimal effort was made to sell the home - Accordingly, the date for assessment of damages was September 15, 1999 - The court determined that the fair market value as of that date was the $262,900 list price - Since fair market value was higher than the price the defendants agreed to pay, the plaintiff suffered no loss.

Damages - Topic 1065

Mitigation - In particular matters - Sale of land - [See Damages - Topic 1042 ].

Sale of Land - Topic 7675

Remedies of vendor - Damages - Where contract repudiated by buyer - [See Damages - Topic 1042 ].

Cases Noticed:

Barran v. Assef (1990), 105 A.R. 50 (Q.B.), affd. (1991), 117 A.R. 364; 2 W.A.C. 364; 83 Alta. L.R.(2d) 88 (C.A.), refd to. [paras. 21, 26].

Johnson v. Agnew, [1980] A.C. 367; [1979] 1 All E.R. 883, refd to. [para. 27].

Ansdell v. Crowther (1984), 55 B.C.L.R. 216; 34 R.P.R. 73; 11 D.L.R.(4th) 614 (C.A.), refd to. [para. 27].

Kempling v. Hearthstone Manor Corp. (1996), 184 A.R. 321; 122 W.A.C. 321 (C.A.), refd to. [para. 34].

Buchanan v. Fisher, [1993] B.C.J. No. 548 (S.C.), refd to. [para. 35].

Mavretic, Sail View Ventures Ltd. v. Alpha Ventures Ltd., [1990] B.C.J. No. 787 (S.C.), refd to. [para. 35].

Fraser v. Van Nus, [1986] B.C.J. No. 3189 (S.C.), refd to. [para. 35].

Kemp v. Lee, [1987] B.C.J. No. 1935 (S.C.), refd to. [para. 35].

Rice v. Rawluk, [1992] O.J. No. 1092 (Gen. Div.), refd to. [para. 35].

Dobson v. Winton and Robbins Ltd., [1959] S.C.R. 775, refd to. [para. 37].

Blue Label Beverages (1971) Ltd. v. Centennial Packers Ltd. (1986), 70 A.R. 1; 44 Alta. L.R.(2d) 68 (Q.B.), refd to. [para. 37].

Taylor and Schiffner v. Gill (1991), 113 A.R. 38; 16 R.P.R.(2d) 238 (Q.B.), refd to. [para. 37].

Luscombe v. Mashinter (1978), 12 A.R. 590; 5 Alta. L.R.(2d) 164 (Dist. Ct.), refd to. [para. 37].

Lorring Realty Projects Ltd. v. Comprop Holdings Ltd. et al. (1982), 38 A.R. 230 (Q.B.), refd to. [para. 37].

Authors and Works Noticed:

Waddams, Stephen M., The Law of Damages (Looseleaf Ed.), pp. 1-48, para. 1.990; 15-3, 15-4, para. 15.70 [para. 6]; 15-4.1, 15-5, para. 15.90 [para. 7]; 15-7, para. 15.140 [para. 8].

Counsel:

Carol A. Neale (Masuch, Albert & Neale), for the plaintiff;

George C. Stewart (Stewart and Stewart), for the defendants.

This action was heard before Lomas, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following judgment on August 6, 2002.