McKersie v. Macala

McKersie v. Macala

The court accepted that the sketch plan, not the numeric '10 acres' figure, defined the intended gift; the 10-acre reference was an inadvertent error and documentary evidence supports the petitioners' intention, so no miscarriage of justice would result from refusing to reopen the judgment; reconsideration was denied but the petitioners' application to amend the order was adjourned and respondents were given liberty to bring claims regarding proprietary estoppel/easement to water supply; petitioners were awarded costs at Scale B.

Citation
2013 BCSC 2
Parties
Petitioners: Walter Gavin McKersie and Betty Inga McKersie; Respondent: Anthony John Macala; Respondent: Valerie Evelyn Macala; Respondent: Dennis Arnold Bond; Respondent: Vivian Leila Bond; Respondent: Kootenay Savings Credit Union; Respondent: The Bank of Nova Scotia
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
2 January 2013
Procedural Posture
Partition Petition (civil Property) / Reconsideration Application Post Oral Judgment, Pre Formal Order (appeal Pending, No Steps Taken)
Outcome
Application to reconsider denied; hearing not reopened; application to amend order adjourned; respondents given liberty to apply regarding proprietary estoppel/easement; petitioners awarded costs at Scale B.
Legal Topics
Partition, Resulting Trust, Proprietary Estoppel, Easement (access to Water), Reconsideration/fresh Evidence
Source Language
English
Property Law Trusts and Equity Civil Procedure Equitable Remedies Partition Resulting Trust Proprietary Estoppel Easement (access to Water) +1 more

Case Brief

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Parties

Walter Gavin McKersie and Betty Inga McKersie

Petitioners

Anthony John Macala

Respondent

Valerie Evelyn Macala

Respondent

Dennis Arnold Bond

Respondent

Vivian Leila Bond

Respondent

Kootenay Savings Credit Union

Respondent

The Bank of Nova Scotia

Respondent

Procedural Posture

Partition Petition (civil Property) / Reconsideration Application Post Oral Judgment, Pre Formal Order (appeal Pending, No Steps Taken)

Legal Issues

  1. 1 Extent of gift and whether the transfer reflected the petitioners' intention
  2. 2 Whether misstatement of acreage (10 acres v 2.5 hectares) is material and constitutes a miscarriage of justice
  3. 3 Whether new evidence justifies reopening judgment and sending matter to trial for discovery and cross-examination

Ratio Decidendi

The court accepted that the sketch plan, not the numeric '10 acres' figure, defined the intended gift; the 10-acre reference was an inadvertent error and documentary evidence supports the petitioners' intention, so no miscarriage of justice would result from refusing to reopen the judgment; reconsideration was denied but the petitioners' application to amend the order was adjourned and respondents were given liberty to bring claims regarding proprietary estoppel/easement to water supply; petitioners were awarded costs at Scale B.

Court Disposition

Application to reconsider denied; hearing not reopened; application to amend order adjourned; respondents given liberty to apply regarding proprietary estoppel/easement; petitioners awarded costs at Scale B.

Orders

  • Reconsideration application dismissed.
  • Application to amend the order adjourned generally; matter may be rescheduled on proper notice to respondents.