MacInnis v. Arab

MacInnis v. Arab

The adjudicator found the post-closing construction obligation and the specified date were sufficiently unusual that time was impliedly of the essence; the Defendant repudiated by failing to commence performance within the required period and the Claimant did not waive strict performance; accordingly the Claimant was entitled to the full $10,000 holdback; $200 awarded for oil as restitution; legal fees disallowed under the Small Claims Regulations; costs of the claim awarded at $182.94.

Citation
2011 NSSM 64
Parties
Claimant: DONALD MacINNIS; Defendant: JOSEPH ARAB
Court
Nova Scotia Small Claims Court
Jurisdiction
Canada
Judgment Date
5 October 2011
Procedural Posture
Small Claims Court Contract/real Property Dispute / Decision Rendered October 5, 2011
Outcome
Judgment for Claimant in the amount of $10,200.00 plus court costs of $182.94; legal fees claim disallowed.
Legal Topics
Time of the Essence, Repudiation, Contractual Conditions, Holdback, Unjust Enrichment, Costs Limitations
Source Language
English
Contract Law Real Property Remedies Procedural Law Time of the Essence Repudiation Contractual Conditions Holdback +2 more

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Parties

DONALD MacINNIS

Claimant

JOSEPH ARAB

Defendant

Procedural Posture

Small Claims Court Contract/real Property Dispute / Decision Rendered October 5, 2011

Legal Issues

  1. 1 Whether time was of the essence for the post-closing construction obligations
  2. 2 Whether the Claimant waived strict performance thereby giving Defendant further reasonable time
  3. 3 Whether Defendant's breach entitled Claimant to the $10,000 holdback or some alternative remedy

Ratio Decidendi

The adjudicator found the post-closing construction obligation and the specified date were sufficiently unusual that time was impliedly of the essence; the Defendant repudiated by failing to commence performance within the required period and the Claimant did not waive strict performance; accordingly the Claimant was entitled to the full $10,000 holdback; $200 awarded for oil as restitution; legal fees disallowed under the Small Claims Regulations; costs of the claim awarded at $182.94.

Court Disposition

Judgment for Claimant in the amount of $10,200.00 plus court costs of $182.94; legal fees claim disallowed.

Orders

  • Return the $10,000.00 holdback to the Claimant
  • Award the Claimant $200.00 for topping off the oil tank