Pemberton v. McDonnell

Pemberton v. McDonnell

Tonkin failed to prove an enforceable contract because essential terms (consent and terms of sale by third party Nursalls and the agreed dividing line/fair market valuations) were left uncertain; an inchoate agreement to subdivide is not a compelling reason to deny a sale under s.6 of the Partition of Property Act...

Source-derived case information.

Citation
2009 BCSC 1098
Parties
Petitioner: Kathleen Ann Pemberton; Respondent: Patrick Arthur McDonnell; Respondent: Richard Scott Tonkin
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
12 August 2009
Procedural Posture
Partition / Judgment
Outcome
Petition granted in part: order for sale and distribution of proceeds; order for partition per alleged contract denied; indemnification and costs awarded to petitioner.
Legal Topics
Partition, Specific Performance, Agreement to Agree, Indemnity for Tax Payment, Sale of Land, Tenancy in Common
Source Language
english
Property Law Contract Law Equity Civil Procedure Partition Specific Performance Agreement to Agree Indemnity for Tax Payment +2 more

Source-derived case record

Summary, issues, holding and outcome

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Parties

Kathleen Ann Pemberton

Petitioner

Patrick Arthur McDonnell

Respondent

Richard Scott Tonkin

Respondent

Procedural Posture

Partition / Judgment

Legal Issues

  1. 1 Whether an enforceable contract existed requiring subdivision and partition specific performance
  2. 2 Whether the petitioner is entitled to an order for sale under the Partition of Property Act
  3. 3 Whether respondents must indemnify petitioner for delinquent property tax payment

Ratio Decidendi

Tonkin failed to prove an enforceable contract because essential terms (consent and terms of sale by third party Nursalls and the agreed dividing line/fair market valuations) were left uncertain; an inchoate agreement to subdivide is not a compelling reason to deny a sale under s.6 of the Partition of Property Act where parties holding one half request sale, therefore the petition for sale is granted, partition per the alleged contract is denied, indemnification for taxes ordered and costs awarded to petitioner.

Court Disposition

Petition granted in part: order for sale and distribution of proceeds; order for partition per alleged contract denied; indemnification and costs awarded to petitioner.

Orders

  • The property will be sold and the net proceeds divided between the parties as their interests appear on the title
  • The petitioner and Patrick McDonnell will have joint conduct of the sale