Brekka v. 1012525 P.E.I. Inc.

Brekka v. 1012525 P.E.I. Inc.

On the facts the Court upheld the motions judges: there was no binding oral settlement and the appellant failed to prove part performance because her acts were not unequivocally referable to the alleged agreement, so s.7(d) Statute of Frauds barred enforcement; further, an unregistered corporation carrying on business in Nova Scotia cannot commence or maintain proceedings connected to that business under s.17(1) of the Corporations Registration Act, and the motions judge properly remedied the defect by adding the assignor as plaintiff and ratifying the Sheriff’s sales rather than quashing proceedings.

Citation
2015 NSCA 73
Parties
Appellant/respondent by Cross Appeal: Betty Ann Brekka; Respondent/appellant by Cross Appeal: 101252 P.E.I. Inc.
Court
Nova Scotia Court of Appeal
Jurisdiction
Canada
Judgment Date
28 July 2015
Procedural Posture
Appeal and Cross Appeal / Decision on Appeal (court of Appeal)
Outcome
Appeals and cross-appeal dismissed
Legal Topics
Part Performance, Enforcement of Alleged Settlement, Foreclosure Sale Confirmation, Corporate Registration Requirement, Amendment of Pleadings, Costs
Source Language
English
Contract Law Property Law Real Property/foreclosure Civil Procedure Corporations Law Equity (part Performance) Statute of Frauds Part Performance +5 more

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Parties

Betty Ann Brekka

Appellant/respondent by Cross Appeal

101252 P.E.I. Inc.

Respondent/appellant by Cross Appeal

Procedural Posture

Appeal and Cross Appeal / Decision on Appeal (court of Appeal)

Legal Issues

  1. 1 Whether a binding oral settlement was concluded between the owner and the mortgagee's president on July 12, 2013
  2. 2 Whether the appellant established acts of part performance sufficient to take the alleged oral agreement outside the Statute of Frauds s.7(d)
  3. 3 Whether an unregistered foreign corporation (101252 P.E.I. Inc.) was precluded by s.17(1) of the Corporations Registration Act from commencing or maintaining foreclosure proceedings

Ratio Decidendi

On the facts the Court upheld the motions judges: there was no binding oral settlement and the appellant failed to prove part performance because her acts were not unequivocally referable to the alleged agreement, so s.7(d) Statute of Frauds barred enforcement; further, an unregistered corporation carrying on business in Nova Scotia cannot commence or maintain proceedings connected to that business under s.17(1) of the Corporations Registration Act, and the motions judge properly remedied the defect by adding the assignor as plaintiff and ratifying the Sheriff’s sales rather than quashing proceedings.

Court Disposition

Appeals and cross-appeal dismissed

Orders

  • Appeals and cross-appeal dismissed
  • Affirmed Woods J.'s decision dismissing motion to enforce alleged settlement and awarding costs of $850 (Wood J. decision)