1672370 Ontario Limited v. D. Narducci Holdings Inc.
The appeal was dismissed because the motion judge properly found that neither party was prepared to close so the appellant could not unilaterally terminate; the respondent lawfully fixed a new closing date; the utilities representation was a warranty not a condition precedent so appellant was required to close and...
Source-derived case information.
- Citation
- 2010 ONCA 264
- Parties
- Appellant: 1672370 Ontario Limited; Respondent; Plaintiff by Counterclaim: D. Narducci Holdings Inc.; Defendant by Counterclaim: Gus Nasr
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 13 April 2010
- Procedural Posture
- Collection / Appeal
- Outcome
- Appeal dismissed except that the motion judge's order was amended to include a warranty that utilities reach the lot line and to fix a new closing date of May 10, 2010; respondent awarded costs and posted security released to respondent.
- Legal Topics
- Closing of Sale, Condition Precedent Vs Warranty, Settlement Agreement Enforcement, Release of Security
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
1672370 Ontario Limited
Appellant
D. Narducci Holdings Inc.
Respondent; Plaintiff by Counterclaim
Gus Nasr
Defendant by Counterclaim
Procedural Posture
Collection / Appeal
Legal Issues
- 1 Whether appellant could unilaterally terminate the settlement when neither party was ready to close
- 2 Whether utilities reaching the lot line was a condition precedent to closing or a warranty
- 3 Whether the motion judge misapprehended the evidence on closing and utilities
Ratio Decidendi
The appeal was dismissed because the motion judge properly found that neither party was prepared to close so the appellant could not unilaterally terminate; the respondent lawfully fixed a new closing date; the utilities representation was a warranty not a condition precedent so appellant was required to close and its remedy for any inaccuracy was damages; the order was amended to provide a warranty and fix a new closing date and costs were awarded to the respondent.
Court Disposition
Appeal dismissed except that the motion judge's order was amended to include a warranty that utilities reach the lot line and to fix a new closing date of May 10, 2010; respondent awarded costs and posted security released to respondent.
Orders
- Appeal dismissed
- Order amended to include a warranty that utilities reach the lot line
Full Case Text
Judgment text and source record
1 paragraphs
1672370 Ontario Limited v. D. Narducci Holdings Inc. Collection Decisions of the Court of Appeal Date 2010-04-13 Neutral citation 2010 ONCA 264 Docket numbers C51192 Judges Doherty, David H.; Feldman, Kathryn N.; Cronk, Eleanore Ann Subject Civil Decision Content CITATION: 1672370 Ontario Limited v. D. Narducci Holdings Inc., 2010 ONCA 264 DATE: 20100412 DOCKET: C51192 COURT OF APPEAL FOR ONTARIO Doherty, Feldman and Cronk JJ.A. BETWEEN 1672370 Ontario Limited Appellant and D. Narducci Holdings Inc. Respondent and D. Narducci Holdings Inc. Plaintiff by Counterclaim and 1672370 Ontario Limited and Gus Nasr Defendants by Counterclaim G. Walkden, for the appellant J. LoFaso and D. Anthony, for the respondent Heard: April 8, 2010 On appeal from the judgment of Justice Price of the Superior Court of Justice, dated October 1, 2009. APPEAL BOOK ENDORSEMENT [1] The motion judge found that neither party was prepared to close on the date agreed upon in the settlement. That finding was open to him on the evidence. His reference to the appellant’s failure to tender payment is not a misapprehension of the evidence. There were funds to be provided on closing ($10,000). In any event, the motion judge’s finding is based on the totality of evidence not just the question of whether funds were provided. [2] As neither party could close, the appellant could not unilaterally terminate as the agreement purported to do in September 2008. The respondent was entitled to fix a new closing date and he did so – October 31, 2008: King v. Urban & Country Transport Ltd. (1973), 1 O.R. (3d) 449 (C.A.). [3] The motion judge found that the respondent could close on October 31, 2008. The appellant claims that the motion judge misapprehended the evidence he relied on in making that finding. In particular, the appellant submits that the evidence does not support the motion judge’s finding that as of the closing date the utilities did reach the lot line. The trial judge canvassed the evidence at some length. We see no misapprehension. The evidence was capable of supporting his conclusion at para. 104. [4] In any event, the representation with respect to the utilities was a warranty and not a condition precedent to closing. Even if the respondent failed to establish that utilities reached the lot line, the appellant was still required to close. His remedy in the event that the representation was inaccurate was a claim for damages on the warranty. [5] Counsel for the respondent has also indicated that his client remains willing to warrant that utilities reach the lot line as part of the closing. The order of the motion judge should be amended to provide for that warranty. The order will be further amended to provide for a closing of May 10, 2010. Otherwise, the appeal is dismissed. [6] The respondent is entitled to costs in the amount of $18,000, inclusive of disbursements and GST. The $15,000 posted as security costs should be released to the respondent or his solicitor on account of the cost order made on the appeal.