Fairchild Developments Ltd. v. 575476 B.C. Ltd.

Fairchild Developments Ltd. v. 575476 B.C. Ltd.

The court found no enforceable indemnity against Kong because there was no consensus ad idem on the essential term (the start date/retroactivity of the one‑year indemnity) and, in any event, the letter agreements were procured in circumstances that rendered them unconscionable (Kong's limited understanding, urgency...

Source-derived case information.

Citation
2018 BCSC 1550
Parties
Plaintiff: Fairchild Developments Ltd.; Defendant (northern Delicacy): 575476 B.C. Ltd.; Defendant (northern Delicacy): 0861930 B.C. Ltd.; Defendant (tropika): 676835 B.C. Ltd.; Defendant / Indemnitor: Wing Ning Kong (also known as Louis W.N. Kong)
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
11 September 2018
Procedural Posture
Landlord and Tenant; Indemnity/guarantee Claim / Trial (reasons for Judgment)
Outcome
Actions dismissed as against defendant Wing Ning Kong; costs awarded to defendant Kong
Legal Topics
Indemnity, Guarantee, Contract Formation, Contract Interpretation, Unconscionability, Rent Arrears, Distraint (rent Distress), Damages
Source Language
english
Contract Landlord and Tenant Property Law Commercial Law Equity Indemnity Guarantee Contract Formation +5 more

Source-derived case record

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Legal principles 4 Authorities cited 8 Party arguments 2 Amounts and remedies 4
Sign in to unlock

Parties

Fairchild Developments Ltd.

Plaintiff

575476 B.C. Ltd.

Defendant (northern Delicacy)

0861930 B.C. Ltd.

Defendant (northern Delicacy)

676835 B.C. Ltd.

Defendant (tropika)

Wing Ning Kong (also known as Louis W.N. Kong)

Defendant / Indemnitor

Procedural Posture

Landlord and Tenant; Indemnity/guarantee Claim / Trial (reasons for Judgment)

Legal Issues

  1. 1 Whether the March 28, 2012 letters (signed Feb 4, 2013) created a binding indemnity by Kong as Indemnitor under the 2012 leases
  2. 2 Whether essential terms (start date/retroactivity and scope of indemnity) were sufficiently certain for contract formation
  3. 3 Whether the letters were unconscionable and should be set aside

Ratio Decidendi

The court found no enforceable indemnity against Kong because there was no consensus ad idem on the essential term (the start date/retroactivity of the one‑year indemnity) and, in any event, the letter agreements were procured in circumstances that rendered them unconscionable (Kong's limited understanding, urgency and Fairchild's conduct); accordingly the indemnity agreements were set aside and Fairchild's claims against Kong were dismissed with costs to Kong.

Court Disposition

Actions dismissed as against defendant Wing Ning Kong; costs awarded to defendant Kong

Orders

  • Claims against Wing Ning Kong dismissed
  • Costs awarded to Wing Ning Kong