Owners, Strata Plan LMS 3851 v. Homer Street Development Limited Partnership

Owners, Strata Plan LMS 3851 v. Homer Street Development Limited Partnership

Misrepresentation allegations against the third parties were dismissed because appellate findings confined misrepresentation liability to the developers; defect claims were not pleaded against third parties in the existing third party notice and cannot be pursued absent amendment with particulars; proposed...

Source-derived case information.

Citation
2011 BCSC 1127
Parties
Plaintiffs: The Owners, Strata Plan LMS 3851, and others; Defendants: Homer Street Development Limited Partnership, formerly Cressey (Homer) Limited Partnership, and others; Third Parties: O'Neill Hotels & Resorts Ltd., OHR Grand Management Ltd., Robert F. O'Neill and John C. O'Neill
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
18 August 2011
Procedural Posture
Civil Strata/real Estate/construction Dispute (misrepresentation, Negligence, Indemnity) / Third Party Application to Dismiss/strike Following First Stage Findings; Discovery Ordered; Leave to Reapply to Amend Reserved
Outcome
Court dismissed third party misrepresentation claims; denied without prejudice proposed amendments that fail to plead material facts regarding defects and mismanagement; struck claims against Robert and John O'Neill personally; held Robert O'Neill's indemnity limited to period up to Hotel Opening Date; ordered...
Legal Topics
Misrepresentation, Negligence, Indemnity, Contribution, Third Party Practice, Pleading Sufficiency, Discovery, Management Agreement
Source Language
english
Contract Tort Real Estate Construction Law Civil Procedure Misrepresentation Negligence Indemnity +5 more

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Summary, issues, holding and outcome

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Parties

The Owners, Strata Plan LMS 3851, and others

Plaintiffs

Homer Street Development Limited Partnership, formerly Cressey (Homer) Limited Partnership, and others

Defendants

O'Neill Hotels & Resorts Ltd., OHR Grand Management Ltd., Robert F. O'Neill and John C. O'Neill

Third Parties

Procedural Posture

Civil Strata/real Estate/construction Dispute (misrepresentation, Negligence, Indemnity) / Third Party Application to Dismiss/strike Following First Stage Findings; Discovery Ordered; Leave to Reapply to Amend Reserved

Legal Issues

  1. 1 Whether third party claims for negligent misrepresentation survive after Court of Appeal findings assigning liability to developers
  2. 2 Whether developers' third party pleadings disclose a reasonable cause of action for defects or mismanagement
  3. 3 Whether claims against individuals (Robert and John O'Neill) disclose independent duties of care

Ratio Decidendi

Misrepresentation allegations against the third parties were dismissed because appellate findings confined misrepresentation liability to the developers; defect claims were not pleaded against third parties in the existing third party notice and cannot be pursued absent amendment with particulars; proposed mismanagement and indemnity claims against third parties fail because they do not plead material facts identifying duties breached or particulars of mismanagement and thus disclose no reasonable cause of action; personal claims against Robert and John O'Neill are struck for failure to plead independent duties; Robert O'Neill's Indemnity Agreement is limited by its terms to the period...

Court Disposition

Court dismissed third party misrepresentation claims; denied without prejudice proposed amendments that fail to plead material facts regarding defects and mismanagement; struck claims against Robert and John O'Neill personally; held Robert O'Neill's indemnity limited to period up to Hotel Opening Date; ordered...

Orders

  • Dismiss the third party misrepresentation claims as set out in Amended Third Party Notice
  • Deny proposed amendments that attempt to plead defects/mismanagement without material particulars