Self v. Brignoli Estate

Self v. Brignoli Estate Court Supreme Court Date 2012-02-24 Citation 2012 NSSC 81 Docket Hfx 3110176 Judge/Registrar/Adjudicator Coady, Kevin (Honourable Justice) (SC) Document Type Decision Decision Content SUPREME COURT OF NOVA SCOTIA Citation: Self v. Brignoli Estate, 2012 NSSC 81 Date: 20120224 Docket: Hfx.No. 311076 Registry: Halifax Between: Anton Self Plaintiff v. Christopher Thayer Burr Brignoli, Administrator of the Estate of Richard Brignoli, Deceased Defendant __________________________________________________________________ DECISION __________________________________________________________________ Judge: The Honourable Justice Kevin Coady Heard: January 17-19, 2012, in Halifax, Nova Scotia Decision: February 24, 2012 Counsel: Anton Self, self represented Colin Bryson, for the defendant By the Court: BACKGROUND: [1] In June, 2000 Mr. Self entered into an Agreement of Purchase and Sale for two lots of land on McNab’s Island located in the mouth of Halifax Harbour. The purchase price was set at $65,000 and the closing date was scheduled for July 13, 2000. The purchase price was subsequently increased to $66,000 in exchange for extending the closing date. Mr. Self retained David MacDonald LLB to represent him on the transaction. On September 20, 2000 the sale of these two lots closed. [2] Shortly before closing Mr. Self told Mr. MacDonald that the closing funds would be provided by Richard Brignoli, someone he described as his “uncle.” Mr. MacDonald contacted Mr. Brignoli who confirmed that he would be purchasing the subject property and wanted the deed in his name. Mr. MacDonald confirmed these details with Mr. Self and prepared a direction and authorization for his signature. Mr. Self agreed that the grantee would be Richard Brignoli. When the deed arrived at Mr. MacDonald’s office Mr. Self was the stated grantee. Mr. MacDonald’s office crossed out Mr. Self’s name and typed instead the name Richard Brignoli. All costs associated with this transaction came from Mr. Brignoli. Mr. Self’s $500 deposit was returned to him. [3] Mr. Self testified that there was a telephone conversation between Messrs. Self, Brignoli and MacDonald just before closing. Mr. Self stated that Mr. Brignoli agreed that he would have a right to purchase the property if Mr. Brignoli wished to sell or when he died. This alleged agreement was not then committed to writing. One week after closing, on the instructions of Mr. Self, Mr. MacDonald prepared a draft “option” agreement which he sent to Mr. Self for his review. [4] The option document states as follows: THIS OPTION AGREEMENT dated this day of , 2000. BETWEEN: RICHARD BRIGNOLI, of Greenwich, State of Connecticut, U.S.A., (hereinafter called the “Vendor”) OF THE FIRST PART - and - ANTON SELF, of Feltzen South, in the County of Lunenburg, Province of Nova Scotia, (hereinafter called the “Purchasers”) OF THE SECOND PART WHEREAS the Vendor has recently purchased property known as Lots 14 and 16, McNab’s Island, Nova Scotia (“the Property”), and the Purchaser wishes to acquire the Property from the Vendor: NOW THEREFORE in consideration of Ten Dollars ($10.00) and other good and valuable consideration, receipt whereof is hereby acknowledged by the Vendor, the Vendor grants to the Purchaser, the irrevocable Option to purchase the property at any time that the property is offered or exhibited for sale by the Vendor or upon the death of the Vendor, whichever first occurs, for a purchase price of Sixty-six Thousand Dollars ($66,000.00) plus interest at the CIBC Prime Rate as it is from time to time to date of purchase. THE PARTIES hereto agree to execute all Deeds, and other documents which may be necessary to give effect to the intent of this Agreement, and agree that this Agreement shall be read with all changes of number or gender required of the context and agree that this Agreement shall enure to the benefit of the parties hereto and be binding upon the parties and their respective heirs, executors, administrators and assigns. IN WITNESS WHEREOF this Option and Agreement has been executed this day of ,2000. SIGNED, SEALED AND DELIVERED - in the presence of - _________________________ ________________________ WITNESS RICHARD BRIGNOLI _________________________ ________________________ WITNESS ANTON SELF [5] This draft document was never signed. Mr. Self testified that he sent the option agreement to Mr. Brignoli along with the closing documentation. Mr. Self states that they never discussed this draft option agreement thereafter. He testified that after Mr. Brignoli’s death in 2006 he found the closing package on the Brignoli yacht. He testified that he turned the package over to Mr. Brignoli’s representative and the draft option agreement was not in the package. [6] In February, 2009 the Brignoli estate signed an agreement to sell the subject property to the Province of Nova Scotia for $90,000. This transaction was blocked by this dispute. The Brignoli estate have an interest in resolving the “option” issue so that it can dispose of the subject property. [7] Mr. Self’s action is for enforcement of the alleged option agreement for the McNab’s Island property. The Brignoli estate denies that an agreement existed and pleads the Statute of Frauds as the alleged agreement was not reduced to writing. Mr. Self relies on the doctrine of part performance to defeat the Statute of Frauds defence. THE STATUTE OF FRAUDS: [8] The Statute of Frauds provides that no agreement concerning an interest in land is enforceable by action unless it has been reduced to writing and signed. An exception to the rule exists if the beneficiary can demonstrate part performance of the agreement it seeks to enforce. [9] Section 7(d) of the Statute of Frauds states: 7 No action shall be sought (d) upon any contract or sale of land or any interest therein; or unless the promise, agreement or contract upon which the action is brought, or some memorandum or note thereof, is in writing, signed by the person sought to be charged therewith or by some other person thereunto by him lawfully authorized. R.S., c.442, s. The purpose of the statute is to protect against perjured evidence to support a conveyance of land. Tabesky v. Hope [2008], N.S.J. 574 (C.A.) [10] Di Castri’s The Law of Vendor and Purchaser states as follows at page 4-1: “The Statute of Frauds provides that no agreement concerning an agreement in land is enforceable by action unless there is evidence in writing signed by the party to be charged or his agent.” [11] The impact of the Statute of Frauds may be avoided if the party seeking to enforce the agreement is able to establish part performance of the agreement. Di Castri describes the test for part performance at page 4-14: But in order to exclude the operation of the Statute of Frauds, the acts of part performance relied upon the plaintiff must: (1) be unequivocally and in their own nature, referable to the contract asserted, which must be one that, if properly evidenced by a writing, would be specifically enforceable; (2) demonstrably, unmistakenly and exclusively point to this contract as affecting the ownership or the tenure of the land in question; and (3) be such that to deny its recognition would be to permit the statute to be made an instrument of fraud by permitting the defendant to escape from the equities with which the acts of part performance have charged him. [12] This test was adopted by Justice Hallett in Carvery v. Fletcher (1987) , 76 N.S.R. (2d) 307 at page 3: The plaintiffs rely on the doctrine of part performance to support an oral agreement for the sale and purchase of the Gerrish Street property. The so-called doctrine of part performance was developed by the Courts of Equity following the passage of the Statute of Frauds in 1677. The Courts quickly realized that the statute was a shield for persons who had orally agreed to sell lands but wished to resile from their agreement. As a result, the Courts of Equity invented the doctrine of part performance to make possible the enforcement of such oral contracts, the theory being that if a person went into possession and made improvements to property or did other acts, it could be evidence that would lead to the conclusion that there was the oral agreement alleged. The Courts quickly realized that the doctrine of part performance too had to have some limits. [13] Justice Hallett discussed how part performance evidence was to be admitted at trial at page 4: A practical difficulty arises in these cases and that is how to have admitted at trial evidence to support an oral contract or to add to the terms of the written memo which, in itself, is insufficient to meet the requirements of the law. This practical problem was dealt with and resolved as early as 1907 in McNeil v. Corbett, 39 S.C.R. 608 at p.611 where Duff, J., stated that the plaintiff must first prove acts relied upon to support the existence of an oral contract and it is only after such acts that unequivocally refer in their own nature to a dealing with the land which is alleged to have been the subject of the contract sued upon have been proven that the plaintiff can then adduce evidence of the oral agreement. An analysis of the method of adducing evidence is contained in Steadman v. Steadman (1974), 3 W.R. 56 and referred to by Di Castri as a footnote to paragraph 136. [14] In Federal Savings Credit Union Limited v. Hessian et al (1978), 36 N.S.R. (2d) 166 Glube J. cites with approval a portion of the decision in Lohnes v. Daw et al (1968), 68 D.L.R. (2d) 730: In the case of Lohnes v. Daw et al. (1968), 68 D.L.R. (2d) 730, Cowan, C.J.T.D., dealt with a s.6 of the Statute of Frauds and what constituted part performance so as to remove the case from the Statute of Frauds. At p.739, he sets forth the doctrine of part performance as dealt with in Williams, Statute of Frauds (1932), pp. 230-61, and he quotes at p.235 from the case of Gunter v. Halsey (1739), Amb.586; 27 E.R. 381, and states that that case - . . . may be regarded as the foundation of the modern doctrine of part performance and that Lord Hardwicke, L.C., in that case, laid down three conditions which were required to be fulfilled before the court would, on the ground of part performance, dispense with a writing under the statute. The first requirement was that “the acts of part performance must have been such as would be a prejudice to the party who had done them, if after that the agreement was to be void.” The second condition was that “as to the acts done in performance they should be such as could have been done with no other view or design than to perform the agreement” and the third condition was that it was necessary that “the terms of agreement should be certainly proved.” This authority stands for the proposition that acts of part performance must unequivocally be referable to the contract asserted. [15] There is conflicting authority on this point. In Deglman v. Brunt Estate, [1954] S.C.R. 725 the Supreme Court referenced the traditional approach and stated at pages 2 and 3: The leading case on this question is Maddison v. Alderson, [(1883) 8 App. Cas. 467]. The facts there were much stronger than those before us. The plaintiff, giving up all prospects of any other course of life, had spent over twenty years as housekeeper of the intestate until his death without wages on the strength of his promise to leave her the manor on which they lived. A defectively executed will made her a beneficiary to the extent of a life interest in all his property, real and personal. The House of Lords held that, assuming a contract, there had been no such part performance as would answer s.4. The Lord Chancellor, Earl Selborne, states the principle in these words: - All the acts done must be referred to the actual contract, which is the measure and test of their legal and equitable character and consequence. Lord O’Hagan uses the following language at page 485: It must be unequivocal. It must have relation to the one agreement relied upon, and to no other when it must be such, in Lord Hardwicke’s words, “as could be done with no other view or design than to perform that agreement.” [16] A less stringent test for part performance was adopted by The House of Lords in Steadman v. Steadman, [1974] 2 All E.R. 977. That court stated that part performance was established if: (I) on balance of probability he acted to his detriment; (ii) it was more probable than not he so acted because he was contractually obliged to the defendant to do so; (iii) such actions were consistent with the oral agreement which he alleges. One of the main differences between this test, and the test adopted in Deglman, is that acts of part performance need not be unequivocally referable to the contract asserted. Steadman only requires them to be consistent with an alleged oral agreement. [17] While it may be argued that some Canadian courts have adopted the Steadman test, I find that the Deglman test is still the law in Canada. This is clearly shown in two cases, Neighborhoods of Cornell Inc. v. 1440106 Ontario Ltd., [2003] O.J. 21919 and Alvi v. Lal, [1990] O.J. 739. In the Neighborhoods case, the court stated as follows at paragraphs 69 and 70: 69 As I stated in Hunter v. Baluke (1998), 42 O.R. (3d) 553 (Gen. Div.), I believe that I am bound by Deglman which clearly adopted the rule formulated in Maddison v. Alderson (1883), 8 App. Cas. 467. This rule requires that a plaintiff who relies on part performance to take an oral agreement respecting land out of the operation of the Statute of Frauds must show that the acts by themselves unequivocally refer to a dealing with land of the kind which is alleged to be the subject matter of the agreement sued upon. Notwithstanding the apparent trend in other provinces, the courts in Ontario appear to have consistently considered themselves bound by Deglman. See Starlite, supra, Alvi v. Lal (1990), 13 R.P.R. (2d) 302 (H.C.J.). 70 Even if Deglman did not bind me, I believe it would be unwise to relax the requirements of part performance in so far as agreements for the purchase and sale of land are concerned. I note that in 1989, the English legislation comparable to s.4 of the Statute of Frauds was amended to require contracts in regard to the sale or disposition of interests in land to be made in writing: see s.2 of the Law of Property (Miscellaneous Provisions) Act 1989. Thus, the failure to have an agreement in writing goes to the question of validity rather than mere enforceability. The view has been expressed that as a result of this amendment the doctrine of part performance has been made inapplicable. See I.C.F. Spry, The Principles of Equitable Remedies: Specific Performance, Injunctions, Rectification and Equitable Damages, 6th ed. (Toronto: Carswell, 2001) at 250. It seems to me that this is a salutary development that is likely to lead to greater certainty in this murky area of the law and a reduction in lengthy and expensive litigation. [18] In the Alvi case the court discussed the Deglman and Steadman cases at page 8: I turn now to the second argument advanced by the plaintiff. Even assuming the Statute of Frauds applies in this case, the plaintiff asserts that there is sufficient part performance as to take the agreement out of the Statute of Frauds. The plaintiff points specifically to the payment of $7,500 as the plaintiff’s share of the deposit on the lands. To assess the validity of this agreement, it is necessary to examine the case law as to what conduct or acts are sufficient to amount to part performance of an alleged contract. The narrower view which has won the repeated support of the Supreme Court of Canada is that the acts of part performance must be “unequivocally, and in their own nature, referable to some such agreement as that alleged.” (See McNeil v. Corbett (1907), 39 S.C.R. 608; Deglman v. Guaranty Trust Co. of Canada, [1954] S.C.R. 725; Brownscomber v. Public Trustee, [1969] S.C.R. 658; Thompson v. Guaranty Trust Co., [1974] S.C.R. 1023. On this view, the Statute of Frauds is regarded as an evidentiary statute only, i.e. if a specific contract is not evidenced by the appropriate writing, it must be evidenced otherwise by the acts of part performance (Fridman, The Law of Contract 2nd ed. at p. 216). Therefore, the acts of part performance must be referable to the very agreement that is relied upon. Steadman has not received the approval of The Supreme Court of Canada, and as such, the more stringent approach in Deglman stands. [19] I submit that the law in Nova Scotia follows the more traditional test set out in Deglman and applied by Hallett, J. in Carvery. In order to avoid the Statute of Frauds a plaintiff must show acts of part performance that are unequivocally referable to the contract for land asserted by the plaintiff. SECTION 45 - EVIDENCE ACT, R.S.N.S. 1989, c154: [20] This legislation impacts significantly on the evidence in this trial because Mr. Brignoli is deceased. Much of Mr. Self’s evidence about the alleged option is a recital of conversations with Mr. Brignoli and, as such, are essentially hearsay. Section 45 reads as follows: On the trial of any action, matter or proceeding in any court, the parties hereto, and the persons in whose behalf any such action, matter or proceeding is brought or instituted, or opposed, or defended, and the husbands and wives of such parties and persons, shall, except as hereinafter provided, be competent and compellable to give evidence, according to the practice of the court, on behalf of either or any of the parties to the action, matter or proceeding, provided that in any action or proceeding in any court, by or against the heirs, executors, administrators or assigns of a deceased person, an opposite or interested party to the action shall not obtain a verdict, judgment, award or decision therein on his own testimony, or that of his wife, or both of them, with respect to any dealing, transaction or agreement with the deceased, or with respect to any act, statement, acknowledgement or admission of the deceased, unless such testimony is corroborated by other material evidence. [21] Sopinka, Lederman & Bryant’s The Law of Evidence in Canada discusses the degree and extent of corroboration required at page 1195: Like the provisions governing criminal proceedings the statutory civil corroboration proceedings do not specify the degree or extent to which evidence needs to be corroborated. In those statutes which require the evidence to be corroborated “by some other material evidence,” the Supreme Court of Canada, in Smallman v. Moore, held that the word “material” is not synonymous with every fact required to be proved in order to establish a cause of action. It is sufficient if there is evidence which appreciably helps the judicial mind to believe one or more of the material statements or facts deposed to”. This is generally the test applied in civil cases which incorporates a test of quality or cogency of the proof offered. The corroborative evidence cannot, however, be in respect of irrelevant and immaterial matters; it must be corroborative of the party’s evidence in essential matters. Also, some statutory provisions may require corroboration of a particular issue, for example, in support of the promise in an action for breach of promise of marriage, or formerly, in support of paternity in affiliation proceedings. [22] The Courts of Nova Scotia have considered s.45 on several occasions. In Samson Estate v. Tanner (1984), 66 N.S.R. (2d) 119 (C.A.) Justice Morrison stated as follows: “It should be emphasized that the corroboration required by s.42 of the Nova Scotia Evidence Act is corroboration of the fact that there was an agreement for payment between the deceased and the respondent. There is considerable evidence to show that the respondent did render services to the deceased particularly over the last year or year and one-half of his life. However, this is not evidence of the agreement for payment but only of the fact that services were rendered.” [23] In Murphy Estate, Re (1998), 169 N.S.R. 384 Davison J. surveyed the leading authorities on the subject of s. 45 corroboration: [20] The Appeal Division of the Supreme Court of Nova Scotia, as it then was, reviewed the question of corroboration required by s.45 in Johnson v. Nova Scotia Trust Co. et al. (1973), 6 N.S.R. (2d) 88 (C.A.). Coffin, J.A., referred to the decision of Justice Gale in Ryan v. Whitton, [1963] 1 O.R. 97 (H.C.), who was considering the similar section in the Ontario Evidence Act, and Coffin, J.A., at p. 106 said: “He made the comment that it was apparent the purpose of the section was to discourage dishonest or ill-founded claims against estates and quoted Mr. Justice Anglin, as he then was, in McKean v. Black (1921), 68 D.L.R. 34; 62 S.C.R. 290, and referred with approval to Radford v. Macdonald (1891), 18 O.A.R. 167, with the words at p.46 D.L.R., p. 308 S.C.R. ... all that the statute requires is that the evidence to be corroborated shall be strengthened by some evidence which appreciably helps the judicial mind to believe one or more of the material statements or facts deposed to, and, as was said in Green v. McLeod (1896), 23 A.R. (Ont.) 676, “the ‘material evidence’ in corroboration may consist of inferences or probabilities arising from other facts and circumstances.” After mentioning certain other authorities, including Smallman v. Moore, [1948] 3 D.L.R. 657, [1948] S.C.R. 295, Gale J., now C.J.O., said at p.101: ‘On those authorities, therefore, it would be my conclusion that if there is evidence corroborating or tending to corroborate evidence of the plaintiff in an action of this kind on some of the material issues which have been raised by the pleadings the purpose of the Act has been satisfied, although, I repeat, the court may thereby be given little or no assistance in its endeavour to decide the veracity of the plaintiff on the matters that are in dispute.’ The trial judge pretty well accepted this view, and he said, ‘As to what constitutes corroboration, it is clear from the authorities that it is not necessary that the whole of the evidence should be corroborated, but it should at least be so far corroborated as to justify the court in treating the whole of it as credible. To corroborate, said one learned judge, means to strengthen, to give additional strength to, to make more certain.’” [21] This passage was referred to by Justice MacDonnell in Shaw v. MacKenzie Estate (1994), 131 N.S.R. (2d) 118; 371 A.P.R. 118 (S.C.), as was the case of Samson Estate v. Tanner (1984), 66 N.S.R. (2d) 119; 152 A.P.R. 119 (C.A.), where Morrison, J.A., adopted the words of Coffin J.A., in Johnson v. Nova Scotia Trust Co. (supra). [22] In McCarthy, Re (1970), 16 D.L.R. (3d) 72 (N.S. Prob. Ct.), O’Hearn, Prob. Cr. J., considered the manner in which the corroborating evidence should be treated at p.86 made this listing: “(a) Corroboration is of no avail if the claimant’s story is not believed; (b) A mere scintilla of corroborating evidence is not sufficient; (c) Evidence that is consistent with two views or two opposing views is not corroboration of either. (d) The corroborating evidence need not be sufficient in itself to establish the case. (e) The direct testimony of the second witness is unnecessary for sufficient corroboration. (f) The corroboration may be afforded by circumstances alone.” [23] In Ward v. Ward Estate (1985), 70 N.S.R. (2d) 219; 166 A.P.R. 219 (Co. Ct.), Palmeter, C.J.C., as he then was, discussed the requirement for corroboration and at p. 228 said: “The law is well set out by Ritchie, C.J., in the case of in Re Estate of A.K. MacDonald (1922-1924), 56 N.S.R. 451, (N.S.S.C. in banco), where at page 458 he adopted the reasoning of Taschereau, C.J., in MacDonald v. MacDonald (1902), 33 S.C.R. 152: ‘The statute does not necessarily require another witness who swears to the same thing. Circumstantial evidence and fair inferences of fact arising from other facts proved, that render it improbable that the fact sworn to be not true, and reasonably tend to give certainty to the contention which it supports, and are consistent with the truth of the fact deposed to, are, in law, corroborative evidence.” [24] In Lands Estates v. Sonnwald (1986), 22 E.T.R. 282 (Ont. H.C.), Watt, J., adopted the statement of MacLennan, J.A., in Radford v. MacDonald (1891), 18 O.A.R. 167 at 173: “Corroborate’ means to strengthen, to give additional strength to, to make more certain, and if the evidence helps the judicial mind appreciably to believe one or more of the material statements or facts deposed to by the party, then, I think, it is what is required by the statute. In such cases, the weight of the evidence will vary, but its admissibility cannot depend on its weight. In some cases it may be weak and in others strong, but the Legislature has not said that it must be strong, but merely that it must be sufficient to corroborate, that is, to strengthen, the evidence of the party.” Section 45 addresses the obvious disadvantage faced by the dead; they cannot tell their side of the story or respond to the living’s version of events. Burns Estate v. Mellon (2000), 133 O.A.C. 83. [24] Justice Warner discussed “other material evidence” in Harvey, Re, 2006 NSSC 118: A mere scintilla is not sufficient. At the same time the corroborating evidence need not be sufficient in itself to establish the case. THE APPROACH TO THE EVIDENCE: [25] Di Castri discusses “marshalling the evidence” at page 4:19: There must be clear and satisfactory evidence of the existence of the contract, and the proper order for marshalling of this evidence, oral or otherwise, is first to prove the acts of part performance in order to let in the evidence of the contract which is sought to be enforced. This approach was confirmed by Hallett, J., in Carvery v. Fletcher, supra, at page 4. PARTIES THEORY OF THE CASE: [26] The plaintiff acknowledges that the Statute of Frauds applies as there is no written document respecting the alleged option agreement with Mr. Brignoli. Mr. Self argues that he is relieved from that rigid rule as a result of acts of part performance. [27] The defendant argues that Mr. Self entered into the Agreement of Purchase and Sale but was financially unable to close the transaction. The defendant submits that the only way for Mr. Self to close the deal, and to avoid an ongoing breach of the agreement, was to get Mr. Brignoli to buy the property. The defendant does not accept that there was an option agreement. [28] Mr. Self testified that in 2000 he had sufficient funds to close the transaction. However he was confronted by evidence that in the early 2000's his mortgage was being foreclosed and that he was not meeting his financial obligations. Mr. Brignoli’s name first appeared in a letter to Mr. MacDonald on the September 14, 2000 scheduled closing date. The evidence satisfies me that Mr. MacDonald was concerned that there would be no closing funds for the delayed closing date. The events surrounding closing suggest a scramble at the last minute. I do not have to decide this argument to decide this case. EVIDENCE OF PART PERFORMANCE: (a) CLOSING DOCUMENTS: [29] Mr. Self argues that the fact all closing documents are in his name support his view that an option agreement was struck with Mr. Brignoli. There is a very clear explanation. The vendors only became aware that Mr. Brignoli would be the grantee on September 14, 2000. Mr. MacDonald had the closing documents on September 12, 2000. They were not sent back to the vendor’s solicitor which tells me Mr. MacDonald expected Mr. Self to close. I am unable to conclude that this evidence is “unequivocal” of an oral agreement. Even if I were to apply the less stringent Steadman test, I would find that it is “not consistent” with the alleged oral agreement. (b) IDENTIFICATION WITH SUBJECT PROPERTY: [30] Mr. Self testified that between 2000 and 2006 he regularly referred to the property as his own. I do not find this evidence to be unequivocal or consistent with the alleged oral agreement. Mr. Self did not adduce any evidence to corroborate his testimony on this point. I have reviewed the evidence of Edward Peill and Kimberly Boyd and do not find any corroboration in their testimony. (c) IMPROVEMENTS TO THE PROPERTY: [31] Mr. Self offers the following at paragraph 20 of his trial brief: The small cabin on the property was derelict at the time of the purchase, and had been subject to vandalism. All its doors and windows had been smashed, and there were holes in the walls and in the floors. Starting in summer 2004 and under Self’s direction, the caretaker Self arranged, Tony Publicover, installed doors and windows and repaired the cabin to a state suitable for habitation. The caretaker continues to reside at, maintain, and make improvements to the subject property, reporting to Self. Self also arranged for Publicover to work as paid crew for Brignoli aboard Brignoli’s yacht Carina during the summers of 2004 and 2005. On direct Mr. Self testified that he hired the caregiver to look after the property and allowed him to reside in the cabin. He stated that he arranged the installation of windows and the construction of a deck and an outhouse. He stated he installed plumbing and heating to the cabin. Mr. Self testified that Mr. Brignoli spent some money to keep the caretaker in place and to cover the costs of the improvements. Mr. Self was unable to provide receipts for these expenditures. [32] On cross-examination a different picture emerged. He acknowledged that the improvements started in 2004 after Mr. Brignoli’s first visit to McNab’s Island. He acknowledged that it was Mr. Brignoli’s idea to hire the caretaker and to undertake improvements. Mr. Self testified that the deal with the caretaker was that he could move in rent free and in lieu of his labour. Mr. Self was required to acknowledge that any financial costs of the improvements were borne by Mr. Brignoli. [33] In an email dated October 25, 2004 sent by Mr. Self to Mr. Brignoli, the following appears: Tony’s been consistently transforming your less and less ramshackle cottage into a home every day he’s there. It’s amazing how different the place feels already, and even more so because he hasn’t invested a penny in new materials for the place. Nobody’s bothered with it since he’s been there, and it’s quite cozy with the cast iron stove going from this place, as well as with some personal effects he’s brought from ashore. We were discussing where you’d most like an outdoor fireplace; whether it should be by that little cottage, or whether it should be on a prospectively sweet building site that has yet to reveal itself elsewhere on the property. Perhaps something that is on higher ground with a view of the harbor entrance, where a jeep trail might be established to it? On the other hand, as the trees are shedding their leaves a view is beginning to reveal itself to McNabs Cove (where the big dock is),and potentially the lighthouse about 20 - 30 degrees to the right, from the kitchen of the small cottage. Mr. Self goes on to ask Mr. Brignoli if he was interested in hiring a crew to clean up the windfalls of trees from a recent storm. He speaks of winterizing “your” place. [34] The following appears in the same email to Mr. Brignoli: Once you get into the Web site for your accounts, you’ll find a window for paying bills online. There are no transaction costs associated with paying bills online. I would recommend setting it up so you can pay your property tax bill, as well as your electric bill. In addition, I think you can set up Tony’s account at TD as a payee as well, so you could transfer funds to him online through the same process. In an October 27, 2004 email Mr. Brignoli replies “you didn’t tell me how to get him (caregiver) money.” In an email dated November 4, 2004 Mr. Self tells Mr. Brignoli “as far as how much, that’s entirely up to you. I would recommend at least a few thousand, and more if you want to bring your property taxes current.” [35] I cannot find that any of the expenditures on the property were expended by Mr. Self. I am satisfied that Mr. Brignoli paid for the vast majority of the improvements and maintenance between 2000 and 2006. Mr. Self was nothing more than a conduit for Mr. Brignoli. In light of my finding there is no way that these expenditures are not acts of part performance, they cannot be described as unequivocal of the alleged oral agreement. There is no corroboration to support Mr. Self’s position on these expenditures and improvements. (d) THE CARETAKER: [36] The gist of Mr. Self’s initial submissions was that in 2004 he arranged and paid for a caretaker. The totality of the evidence does not support that testimony. While Mr. Self may have suggested the individual, I am satisfied that Mr. Brignoli instructed and paid for that employee. This is not part performance. (e) POWER INSTALLATION: [37] In direct examination Mr. Self testified that in 2004 he had the power hooked up to the cabin, the account placed in his name and that he paid the power bills. On cross-examination Mr. Self was referred to the emails which have been referenced in this decision. He then acknowledged that the power bills were for the account of Mr. Brignoli. I have not seen any power bills in Mr. Self’s name. I have not seen any documentation confirming that Mr. Self paid anything to bring power to the cabin on McNab’s Island. [38] Even if such documentation was in evidence, I would not find that this was an act of part performance. The email exchanges suggest that Mr. Self was acting as an agent for Mr. Brignoli. This evidence is not unequivocal of the alleged oral agreement. There is nothing to corroborate Mr. Self’s submissions on this point. (f) LEGAL INSTRUCTIONS: [39] It is not disputed Mr. Self instructed Mr. MacDonald to create the draft option agreement. Mr. MacDonald testified that he sent this document to Mr. Self on September 28, 2000 and that he heard nothing about it thereafter. Mr. Self testified that he sent the document to Mr. Brignoli but that they never discussed the document thereafter. I accept that this could amount to part performance if it were unequivocal of the alleged oral agreement and was in some way corroborated. It is not, and as such, it is not an act of part performance. (g) REGISTERED ADDRESS: [40] In his brief Mr. Self stated “from the closing date of the property, until Brignoli’s death in 2006, the registered address for the property was Self’s address.” All mail, property tax statements, insurance bills, and other notices regarding the property, including David MacDonald’s statements, the deed and related closing documents were sent to Mr. Self in Nova Scotia. [41] I am unable to conclude that this factor speaks of the alleged oral agreement. There are many possible explanations as to why things were sent to Mr. Self’s name. He lived in Nova Scotia while Mr. Brignoli did not. Mr. Self testified that Mr. Brignoli did not want his wife and family to know about the McNab’s Island property. In addition Mr. Self did not provide corroboration such as copies of the statements, bills and other notices. I have already addressed the closing documents earlier in this decision. (h) APPLICATION FOR MOORINGS: [42] In his brief Mr. Self stated in February 2005 he applied to the Halifax Port Authority for three mooring permits at McNab’s Island in the names of both Self and Brignoli. He argues this is evidence of the spirit of their agreement. On direct examination Mr. Self’s evidence on point was that he and Mr. Brignoli were given mooring privileges on McNab’s Island. This is hardly probative of the alleged oral agreement. Mr. Self and Mr. Brignoli both owned land on the Island and they both were avid and experienced sailors. This evidence does not amount to part performance. [43] It should be noted that after Mr. Brignoli’s death in 2006, all actions of Mr. Self or the caretaker toward the subject property were subject to the defendants protest. Notwithstanding, I am unable to locate any acts of part performance between 2006 and this trial. THE OPTION AGREEMENT: [44] Given that Mr. Self has failed to establish acts of part performance, it is not open for this court to accept the evidence of Mr. Self about the alleged oral agreement. Justice Hallett in Carvery v. Fletcher referenced the long established principle that “it is only after such acts that unequivocally refer in their own nature to a dealing with the land which is alleged to have been the subject of the contract sued upon have been proven that the plaintiff can then advance evidence of the oral agreement.” [45] I also wish to say that even if I accepted the more liberal Steadman test for part performance, I would still come to the same conclusion. TRUST ARGUMENT: [46] I have carefully reviewed the submissions of Mr. Self on ‘trusts”. I do not find them helpful in deciding this case. CONCLUSION: [47] I conclude that the Statute of Frauds applies and, as such, Mr. Self’s action is dismissed. If the parties cannot agree on costs, I will accept written submissions. J.