Drake v. North Ellis Developments Ltd.

Drake v. North Ellis Developments Ltd.

Court held 'deposit' under REDMA means money actually paid to the developer; a deposit bond is security and not 'money paid', so there was no breach of the 10% cash limit; however, conflicting affidavit evidence on whether the purchaser had a reasonable opportunity to read the disclosure statement prevented determination on summary trial, so the summary application was dismissed and the disclosure‑statement issue (and defendant's counterclaim) was referred to trial.

Citation
2011 BCSC 1182
Parties
Claimant: Robbie Drake; Respondent: North Ellis Developments Ltd.
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
28 July 2011
Procedural Posture
Contract — Real Estate (purchase and Sale) / Summary Trial Application Heard Under Rule 9‑7; Application Dismissed in Part and Matters Referred to Trial List
Outcome
Summary trial application dismissed in part; claimant's deposit argument dismissed; disclosure‑statement compliance issue and respondent's counterclaim referred to trial; respondent awarded costs of the application payable in the cause.
Legal Topics
REDMA Deposits, Disclosure Statement (pre‑contract Reading), Summary Trial (rule 9‑7), Deposit Bond, Rescission Rights
Source Language
English
Real Estate Law Contract Law Statutory Interpretation Civil Procedure REDMA Deposits Disclosure Statement (pre‑contract Reading) Summary Trial (rule 9‑7) Deposit Bond +1 more

Case Brief

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Parties

Robbie Drake

Claimant

North Ellis Developments Ltd.

Respondent

Procedural Posture

Contract — Real Estate (purchase and Sale) / Summary Trial Application Heard Under Rule 9‑7; Application Dismissed in Part and Matters Referred to Trial List

Legal Issues

  1. 1 Whether the purchaser's deposit arrangement exceeded the 10% cash deposit limit in REDMA and related policy
  2. 2 Whether the purchaser was afforded a reasonable opportunity to read the disclosure statement before the developer signed (REDMA s.15(1)(b),(c))
  3. 3 Whether the purchase agreement is unenforceable under REDMA s.23 if s.15 was breached

Ratio Decidendi

Court held 'deposit' under REDMA means money actually paid to the developer; a deposit bond is security and not 'money paid', so there was no breach of the 10% cash limit; however, conflicting affidavit evidence on whether the purchaser had a reasonable opportunity to read the disclosure statement prevented determination on summary trial, so the summary application was dismissed and the disclosure‑statement issue (and defendant's counterclaim) was referred to trial.

Court Disposition

Summary trial application dismissed in part; claimant's deposit argument dismissed; disclosure‑statement compliance issue and respondent's counterclaim referred to trial; respondent awarded costs of the application payable in the cause.

Orders

  • Claimant's REDMA deposit challenge dismissed (no breach found)
  • Application under Rule 9‑7 dismissed as to remaining issues; matter referred to trial list for determination of disclosure‑statement issue and respondent's counterclaim