Brisbin v. Gilby

Brisbin v. Gilby

Adjudicator found on balance of probabilities the defect (significant hydrostatic basement leakage) predated closing and the seller's disclosure was inaccurate as to absence of recent problems; claimant reasonably relied on that inaccurate disclosure; liability found under negligent misrepresentation/collateral warranty; damages awarded for remediation proven to relate to breach, with disallowance of unproven driveway/walkway items and a one-third betterment deduction, plus costs, resulting in total judgment of $10,040.32.

Citation
2007 NSSM 66
Parties
Claimant: Virginia Brisbin; Defendant: Elizabeth Gilby
Court
Nova Scotia Small Claims Court
Jurisdiction
Canada
Judgment Date
15 November 2007
Procedural Posture
Small Claims Court Property Condition Disclosure / Final Decision
Outcome
Claim allowed in part; Defendant ordered to pay total $10,040.32 (debt $9,860.32; costs $180.00).
Legal Topics
Property Condition Disclosure, Non Disclosure, Disclosure Statements, Damages, Betterment
Source Language
English
Real Property Contract Law Tort Law Negligent Misrepresentation Property Condition Disclosure Non Disclosure Disclosure Statements Damages +1 more

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Parties

Virginia Brisbin

Claimant

Elizabeth Gilby

Defendant

Procedural Posture

Small Claims Court Property Condition Disclosure / Final Decision

Legal Issues

  1. 1 Whether the seller made an insufficient or inaccurate disclosure on the property condition disclosure statement giving rise to liability
  2. 2 If liability found, appropriate measure and quantum of damages

Ratio Decidendi

Adjudicator found on balance of probabilities the defect (significant hydrostatic basement leakage) predated closing and the seller's disclosure was inaccurate as to absence of recent problems; claimant reasonably relied on that inaccurate disclosure; liability found under negligent misrepresentation/collateral warranty; damages awarded for remediation proven to relate to breach, with disallowance of unproven driveway/walkway items and a one-third betterment deduction, plus costs, resulting in total judgment of $10,040.32.

Court Disposition

Claim allowed in part; Defendant ordered to pay total $10,040.32 (debt $9,860.32; costs $180.00).

Orders

  • Defendant to pay Claimant debt $9,860.32
  • Defendant to pay costs $180.00