Whalen v. Murphy

Whalen v. Murphy

Because no written notice was given by the April 8, 2010 deadline, the financing condition was deemed waived and the defendants remained contractually obliged; their failure to complete therefore constituted breach and they are liable for foreseeable, mitigable damages. The court calculated damages by netting avoided commission and crediting trust deposits, awarding the claimants $4,633.63 plus costs for a total of $4,913.04.

Citation
2011 NSSM 19
Parties
Claimant: Tracy Whalen; Claimant: Roderick Whalen; Defendant: René Murphy; Defendant: Wenche Overland
Court
Nova Scotia Small Claims Court
Jurisdiction
Canada
Judgment Date
24 March 2011
Procedural Posture
Small Claims Court Contract (purchase and Sale) / Decision
Outcome
Claim allowed in part; judgment for the claimants against the defendants.
Legal Topics
Breach of Contract, Financing Condition, Damages Assessment, Mitigation of Loss
Source Language
English
Contract Law Property Law Real Estate Law Remedies (damages) Breach of Contract Financing Condition Damages Assessment Mitigation of Loss

Case Brief

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Parties

Tracy Whalen

Claimant

Roderick Whalen

Claimant

René Murphy

Defendant

Wenche Overland

Defendant

Procedural Posture

Small Claims Court Contract (purchase and Sale) / Decision

Legal Issues

  1. 1 Whether the purchaser's financing condition was validly relied on to terminate the Purchase and Sale Agreement
  2. 2 Whether the purchasers gave the required written notice by the contractual deadline to avoid the agreement
  3. 3 Quantum of damages recoverable by vendor for breach and appropriate mitigation adjustments

Ratio Decidendi

Because no written notice was given by the April 8, 2010 deadline, the financing condition was deemed waived and the defendants remained contractually obliged; their failure to complete therefore constituted breach and they are liable for foreseeable, mitigable damages. The court calculated damages by netting avoided commission and crediting trust deposits, awarding the claimants $4,633.63 plus costs for a total of $4,913.04.

Court Disposition

Claim allowed in part; judgment for the claimants against the defendants.

Orders

  • Defendants to pay claimants $4,633.63 (damages)
  • Defendants to pay court costs $179.36