Nepean Carleton Developments v. Hope et al.

Nepean Carleton Developments v. Hope et al.

The Lloyd Hope agreement was unenforceable because it reserved fee simple in the excluded residence parcel and therefore fell within s.29(7) of The Planning Act which prevents creation or conveyance of any interest in land absent an express statutory condition; no implied condition could save it, so neither specific performance nor damages could be awarded. The Scott Hope agreement remained subsisting because the vendors waived strict time by conduct and the vendor's repudiation made the vendor the defaulting party; the purchaser's tender was adequate or remediable (cash acceptable) and specific performance against Scott Hope was ordered subject to adjustments.

Citation
[1978] 1 SCR 427
Parties
Plaintiff Appellant: Nepean Carleton Developments Limited; Defendant Respondent: Lloyd Alexander Hope; Third Party Respondent: Dulmage Boyd Kirkland & Murphy; Defendant Respondent: Scott Munro Hope; Defendant Respondent: Ruth Hope
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
20 December 1976
Procedural Posture
Action for Specific Performance and in the Alternative for Damages (contract for Sale of Land) / Appeal to the Supreme Court of Canada From the Court of Appeal for Ontario (judgment on Appeals)
Outcome
First appeal (Lloyd Hope) dismissed; second appeal (Scott Hope) allowed.
Legal Topics
Specific Performance, Subdivision Control, Statutory Unenforceability, Tender and Closing, Repudiation, Waiver of Time, Return of Deposit
Source Language
English
Contract Property Equity Municipal Planning Law Specific Performance Subdivision Control Statutory Unenforceability Tender and Closing +3 more

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Parties

Nepean Carleton Developments Limited

Plaintiff Appellant

Lloyd Alexander Hope

Defendant Respondent

Dulmage Boyd Kirkland & Murphy

Third Party Respondent

Scott Munro Hope

Defendant Respondent

Ruth Hope

Defendant Respondent

Procedural Posture

Action for Specific Performance and in the Alternative for Damages (contract for Sale of Land) / Appeal to the Supreme Court of Canada From the Court of Appeal for Ontario (judgment on Appeals)

Legal Issues

  1. 1 Whether Planning Act s.29(7) renders the Lloyd Hope agreement unenforceable and bars damages
  2. 2 Whether the vendor retained fee simple or only a licence in excluded residence parcel
  3. 3 Whether an agreement can be saved by an implied condition to comply with s.29

Ratio Decidendi

The Lloyd Hope agreement was unenforceable because it reserved fee simple in the excluded residence parcel and therefore fell within s.29(7) of The Planning Act which prevents creation or conveyance of any interest in land absent an express statutory condition; no implied condition could save it, so neither specific performance nor damages could be awarded. The Scott Hope agreement remained subsisting because the vendors waived strict time by conduct and the vendor's repudiation made the vendor the defaulting party; the purchaser's tender was adequate or remediable (cash acceptable) and specific performance against Scott Hope was ordered subject to adjustments.

Court Disposition

First appeal (Lloyd Hope) dismissed; second appeal (Scott Hope) allowed.

Orders

  • Specific performance ordered against Scott Hope with payment in cash after necessary adjustments; matter referred for adjustments unless parties agree
  • Deposit paid under the Lloyd Hope agreement to be returned to appellant (assignee)