Zaenker v. Kirk

Zaenker v. Kirk

The Court of Appeal held the water clause was not ambiguous and is enforceable against the vendors; because the purchasers were not solely responsible for the termination (the Faridis imposed unequal terms), the purchasers may require the vendors to install a replacement water system and ensure continuous supply;...

Source-derived case information.

Citation
2003 BCCA 530
Parties
Appellants (purchasers): Kurt Zaenker and Christine Zaenker; Respondents (vendors): Susan Catharine Kirk (also known as Susan Catharine Nordin) and Kelly Nordin; Property Owner / Third Party (not Party to Proceeding): Mr. and Mrs. Faridi
Court
British Columbia Court of Appeal
Jurisdiction
Canada
Judgment Date
25 September 2003
Procedural Posture
Civil Appeal Contract and Real Property (enforceability of Contractual Clause) / Court of Appeal Judgment on Enforceability; Damages Remitted to Trial Court for Determination
Outcome
Appeal allowed in part; order dismissing the action and awarding costs to respondents set aside; matter of damages remitted to trial court; appellant awarded costs in this Court of Appeal.
Legal Topics
Enforceability of Contractual Clause, Water Supply Obligations, Contractual Ambiguity, Mitigation and Damages, Vendor Obligations on Sale
Source Language
english
Contract Law Real Property Law Easements Civil Procedure Remedies Enforceability of Contractual Clause Water Supply Obligations Contractual Ambiguity +2 more

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Summary, issues, holding and outcome

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Parties

Kurt Zaenker and Christine Zaenker

Appellants (purchasers)

Susan Catharine Kirk (also known as Susan Catharine Nordin) and Kelly Nordin

Respondents (vendors)

Mr. and Mrs. Faridi

Property Owner / Third Party (not Party to Proceeding)

Procedural Posture

Civil Appeal Contract and Real Property (enforceability of Contractual Clause) / Court of Appeal Judgment on Enforceability; Damages Remitted to Trial Court for Determination

Legal Issues

  1. 1 Whether the water service clause in the purchase agreement is enforceable against the vendors
  2. 2 Whether the purchasers' conduct causing termination of water supply relieves vendors of obligations under the clause
  3. 3 Whether the clause is ambiguous and thus unenforceable

Ratio Decidendi

The Court of Appeal held the water clause was not ambiguous and is enforceable against the vendors; because the purchasers were not solely responsible for the termination (the Faridis imposed unequal terms), the purchasers may require the vendors to install a replacement water system and ensure continuous supply; the question of damages and mitigation is a matter for the trial court.

Court Disposition

Appeal allowed in part; order dismissing the action and awarding costs to respondents set aside; matter of damages remitted to trial court; appellant awarded costs in this Court of Appeal.

Orders

  • Appeal allowed
  • Order dismissing action and awarding costs to respondents set aside