Amar v. Matthew

2010 BCSC 508 Amar v. Matthew IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Amar v. Matthew, 2010 BCSC 508 Date: 20100416 Docket: S098723 Registry: Vancouver Between: Robert Daniel Amar and Michelle Andrea Amar Plaintiffs And Ross Haynes Matthew, Ross Haynes Matthew as Executor of the Will of Shirley Anne Sykes, Deceased, and the Estate of Shirley Anne Sykes, Deceased Defendants And Robert Daniel Amar and Michelle Andrea Amar, Albert Amar and Evelyn Amar, Dave Lund, Gordon Harmon and Prudential Sussex Realty, and Charlie Mackenzie, Henry Vagar and Re/Max Crest Realty Defendants by Counterclaim Before: The Honourable Mr. Justice Sewell Reasons for Judgment Counsel for the Plaintiffs: Gerald Mazzei Defendant Ross Haynes Matthew: In Person Counsel for the Defendants by Counterclaim, Dave Lund, Gordon Harmon and Prudential Sussex Realty: Kelly A. Murray Place and Date of Trial: Vancouver, B.C. April 1, 2010 Place and Date of Judgment: Vancouver, B.C. April 16, 2010 [1] In this action the plaintiffs, Robert Daniel Amar and Michelle Andrea Amar, apply pursuant to Rule 18A of the Rules of Court for an order for specific performance of a contract whereby they agreed to buy and the defendant, Ross Haynes Matthew, the executor of the Will of his late wife, Shirley Anne Sykes, agreed to sell a home located at 2958 Brixham Road, North Vancouver, B.C. The Amars also seek damages for breach of contract. [2] In the Summer of 2009, Mr. and Mrs. Amar were living with their two young children in a townhouse in North Vancouver. Although they had limited funds they wished to move to a larger home. In June 2009, they began looking for a suitable house. In July 2009 their real-estate agent, Mr. Mackenzie, introduced them to the property at 2958 Brixham Road. This property had for many years been the family home of Mr. Matthew and his late wife. Mr. Matthew had listed the property for sale with Mr. Dave Lund of Prudential Sussex Realty. [3] On July 27, 2009, the Amars made an offer to purchase the Brixham Road property. After the usual negotiations with respect to price and terms, the Amars and Mr. Matthew signed a Contract of Purchase and Sale for $659,000. [4] The dispute between the parties finds its origin in a condition contained in the contract which made the seller's obligation to complete the transaction subject to the seller receiving on or before September 28, 2009, a Grant of Letters Probate with respect to the estate of Ms. Sykes and an assurance that everyone entitled to claim under the Wills Variation Act has waived or released his or her claim against the property. [5] On September 24, 2009, the Amars and Mr. Matthew signed an addendum to the contract whereby they agreed that the completion date for the transaction would be extended from September 28, 2009, to November 17, 2009, and the possession and adjustment dates extended from September 30, 2009, to November 22, 2009. The addendum also provided that if Mr. Matthew had not received a Grant of Letters Probate for Ms. Sykes' estate by the completion date, the parties agreed to extend the completion and adjustment date for a further 30 days. [6] On October 10, 2009, Mr. Matthew executed a document entitled Contract of Purchase and Sale Addendum whereby he removed the seller's conditions. As this document is of central importance in these reasons, I quote the relevant portions verbatim as follows: ---THE UNDERSIGNED HEREBY AGREE AS FOLLOWS: To Remove the following subject: Subject to the Seller receiving the following on or before November 17, 2009. 1) Copy of Grant of Letter Probate; and 2) Assurance that everyone entitled to claim under the wills variation act has waived or released his or her claim against the property. THIS IS NOW A FIRM AND BINDING CONTRACT. [7] Mr. Lund witnessed Mr. Matthew's signature on the October 10 addendum. He deposes that approximately four weeks after October 10, 2009, Mr. Matthew provided his office with a copy of the addendum with some of the words blacked out and initialled by Mr. Matthew. He deposes that he was not present when Mr. Matthew blacked out the words on the addendum and did not witness any blacking out or any initialling of that document by Mr. Matthew. The words which were blacked out and initialled on the new version of the addendum were paragraph 2, relating to the assurance that no claim would be made pursuant to the Wills Variation Act, and the sentence "THIS IS NOW A FIRM AND BINDING CONTRACT". [8] Mr. Matthew was present at the hearing of the Amars' application. He did not provide any affidavit, but did make oral submissions. I will deal with his submissions in detail later in these reasons. At this point it is sufficient to say that Mr. Matthew does not agree that Mr. Lund was not present when he executed the revised addendum. However, Mr. Matthew acknowledged that he revised the addendum and made the changes outlined above sometime after executing the original version of the addendum on October 10, 2009. [9] After the Amars received the original version of the addendum, they continued to take the steps necessary to complete their obligations under the contract. They obtained a commitment from TD Canada Trust for a first mortgage in the amount of $404,000.00 and arranged to have the sale proceeds from their home at 55 - 65 Roche Point Drive, North Vancouver paid to their solicitors to be applied on account of the purchase price of the Brixham Road property. The sale of the Roche Point Drive property completed on September 10, 2009, and the Amars and their children have been living in temporary accommodation since that time. [10] By November 17, 2009, the Amars were ready, willing and able to complete the contract, and in particular had taken all necessary steps to be in a position to pay the full amount of the purchase price to Mr. Matthew upon transfer of title. [11] The Amars retained the services of Mr. Richard Goluboff to act on their behalf in the conveyance and transaction. On November 9, 2009, Mr. Goluboff delivered a letter to Mr. Matthew enclosing the usual conveyancing documents, including a Form A Transfer and Vendor's Statement of Adjustments. On November 13, 2009, Mr. Matthew wrote to Mr. Goluboff asking certain questions with respect to the transaction. In the letter Mr. Matthew did not specifically state that he would not complete the transaction. He did ask a number of questions with respect to the fair market value of the property as shown on the conveyancing documents. Mr. Matthew did not execute any of the conveyancing documents sent to him by Mr. Goluboff. [12] It is to be noted that Mr. Lund and Mr. Mackenzie depose that they or their offices received the revised version of the October 10 addendum on November 13, 2009. [13] On November 16, 2009, Mr. Mazzei wrote to Mr. Matthew confirming that the Amars' solicitors were in funds to pay the down payment and confirming that upon registration of a Form A Transfer transferring title to the property to the Amars together with registration of the TD Canada Trust mortgage the solicitors would cause their agent to deliver their trust cheque for the net sale proceeds to Mr. Matthew. While the letter from Mr. Mazzei does not contain the word "undertaking" I have no difficulty in concluding that by this letter Mr. Mazzei was giving his solicitor's undertaking to pay the net sale proceeds to Mr. Matthew in accordance with the terms of the contract of purchase and sale. [14] Mr. Matthew did not execute the conveyancing documents or take any steps to complete the contract after receiving the November 16, 2009, letter. On November 26, 2009, Mr. Matthew wrote a letter to Mr. Mazzei. From the contents of this letter and the delivery of the revised addendum, I conclude that by November 13, 2009, and from the delivery of the revised addendum, Mr. Matthew had decided not to complete the contract in accordance with its terms. [15] The evidence before me satisfies me that Mr. and Mrs. Amar were at all relevant times ready, willing and able to complete the contract in accordance with its terms and that they have complied with all of their obligations under the contract and that they continue to be ready, willing and able to complete the contract at the present time. LEGAL ISSUES [16] As this is an application for summary trial pursuant to Rule 18A, the first issue I must address is whether I can find the facts necessary to decide the issues in this case, and if I can, whether it would be unjust to Mr. Matthew to do so. [17] Mr. Matthew was not represented by counsel in this case. At the hearing I confirmed with him that he was not seeking an adjournment of the plaintiffs' application. In addition, this matter was originally set for hearing on March 15, 2010. At that time Madam Justice Dillon granted an adjournment but directed that the application be heard on April 1st. Accordingly I proceeded to hear the application. [18] As indicated above, Mr. Matthew did not swear an affidavit in answer to the Amars' application. He did, however, make an oral submission to me. In the course of that submission he raised two defences to the claim against him. Firstly, Mr. Matthew says that he made a mistake in waiving the seller's conditions contained in the contract of purchase and sale. He also submitted and provided me with documentation suggesting that the actual market value of the Brixham Road Property in 2009 was significantly greater than the agreed selling price contained in the contract. [19] Mr. Matthew stated that Mr. Lund was present when he signed the revised version of the October 10, 2009 addendum. Mr. Matthew's submission is that there is a dispute and a credibility issue as between himself and Mr. Lund with respect to the circumstances under which the revised October 10 addendum was signed. He also submits that the agreed price for the Brixham Road Property was so low in comparison to its actual value that it would be unfair to him to require him to sell the property at that price. [20] In his statement of defence and counterclaim, Mr. Matthew also makes a number of allegations against David Lund and Prudential Sussex Realty. These allegations may be summarized as a failure on the part of Mr. Lund and Prudential Sussex Realty to properly discharge their duties and obligations as Mr. Matthew's agent and in particular as allegations that Mr. Matthew's agents failed to take the steps necessary to obtain full value for the property. [21] I have concluded that I am able to find the facts necessary to decide this case and that it would not be unjust to do so. Mr. Matthew does not allege that anything done by Mr. and Mrs. Amar or their agent, Mr. Mackenzie, induced him to sign the contract or execute the October 10 addendum waiving the seller's conditions. Further in his submissions to me he agreed that he signed the revised version of the October 10 addendum sometime after that date. [22] The law is well-settled that once a binding agreement comes into force it can only be varied or set aside by the consent of both parties to the transaction. In this case, Mr. Matthew's purported variation of the October 10 addendum was done unilaterally and could not affect the binding nature of the contract. [23] Similarly, it is my view that Mr. Matthew's concerns with respect to the purchase price and his allegations about Mr. Lund's conduct are matters between Mr. Matthew and Mr. Lund and his employers and do not affect the Amars' rights under the contract. In both his oral submissions to me and his statement of defence, Mr. Matthew agrees and acknowledges that he had no direct contact with the Amars with respect to this transaction. I therefore conclude that even if Mr. Matthew establishes the allegations he makes in his statement of defence and the assertions he made before me he would still continue to be bound by the contract. [24] In this case I am also mindful of the fact that Mr. and Mrs. Amar are now living in a one-bedroom basement suite with their two children. Much of their furniture is in storage. They have been delayed in obtaining their new home for approximately five months. In many ways their lives are on hold pending the disposition of this action. I do not think it would be just to them to delay this case any further. [25] I have concluded that the remedy of specific performance is appropriate in this case. Mr. and Mrs. Amar entered into this transaction in order to obtain more suitable accommodation for themselves and their children. The evidence before me is that the property is well located with respect to schools and other amenities. In addition, it is common ground that the real estate market in the Greater Vancouver area is at present very volatile and there is no assurance that any award of damages which I make in this case would provide an adequate remedy to the Amars in the sense of putting them in the same position they would have been in had Mr. Matthew performed his obligations under the contract. [26] The Amars made an agreement to purchase a home that they could afford in an area that was in many ways beyond their price range. They have in good faith done everything they were required to do to perform the contract. I think that any award of damages I could make in lieu of specific performance would carry with it the risk that the Amars may not be able to find alternate accommodation in the area they wish to live. Similarly the task of trying to fix the actual value of the property at the date of trial would at best result in my substituting my assessment of damage for the actual loss of the bargain to purchase a home which seems uniquely to meet the Amars' needs and circumstances. [27] In Semelhago v. Paramadevan [1996] 2 S.C.R. 415 the Supreme Court of Canada held that an order for specific performance should not be made merely because the subject matter of a contract was the sale of land. However, the Court did recognize that a Court can order specific performance in appropriate circumstances. [28] In Ali v 656527 BC Ltd 2004 BCCA 350, the Court of Appeal held that an order for specific performance is appropriate when the plaintiffs can show that a substitute property is not readily available and that there is a fair and substantial justification for such a remedy. In this case I find that the Amars have demonstrated that there is no readily available substitute property and in particular that that the state of the real market is such that any assessment of damages would not provide an adequate remedy to them. [29] I order specific performance of the contract between Mr. and Mrs. Amar and Mr. Matthew. The history of this matter causes me some concern with respect to the actual performance of the contract. I therefore propose to make certain orders to ensure that the contract is completed in a timely way. [30] Firstly, I direct that the solicitors for Mr. and Mrs. Amar deliver the conveyancing documents contemplated in the contract and delivered to Mr. Matthew on November 9, 2009, to Mr. Matthew. I direct that the completion and possession date of the transaction be June 1, 2010, and that the Vendor's Statement of Adjustments be prepared to reflect that date. I further direct that the documents provided to Mr. Matthew make it clear that the Amars' solicitors are giving an undertaking to pay the balance of the purchase price to be obtained from mortgage proceeds immediately upon receipt of advance of the mortgage monies by TD Canada Trust after closing. [31] If Mr. Matthew does not sign and return all of the documents necessary to complete the transaction within seven (7) days of their being delivered to him I direct that a Registrar of the Court execute the documents, including the Vendor's Statement of Adjustments, on his behalf and that Mr. and Mrs. Amar be at liberty to pay the proceeds of sale set out in the Vendor's Statement of Adjustments into Court in full satisfaction of their obligations pursuant to the contract. [32] I trust that it will be unnecessary for those steps to be taken and that Mr. Matthew will comply with my order to execute the conveyancing documents, and in particular the Form A Transfer. I also wish to make it clear that I consider this to be an urgent matter and I give counsel leave to appear before me on short notice should there be any difficulty in completing the transaction. [33] In addition to specific performance Mr. and Mrs. Amar seek damages arising out of the delay in completion of this contract. The damages claimed are as follows: Williams Moving and Storage $1,260.00 North Vancouver Storage to December 31, 2009 $1,205.00 North Vancouver Storage March 1, 2010 $ 543.00 North Vancouver Storage April 1, 2010 $ 543.00 Three additional Canada Post change of addresses: $ 103.43 Loss of Renovation Tax Credit $1,350.00 Call forwarding home number charges December 2009 $ 93.60 Call forwarding home number charges March 2010 $ 31.20 Call forwarding home number charges April 2010 $ 31.20 Additional cellular telephone usage December 2009 $ 45.00 Additional cellular telephone usage March 2010 $ 15.00 Additional cellular telephone usage April 2010 $ 15.00 Loss of rebate for TD Canada Trust Pre-payment penalty $ 677.59 TOTAL: $5,370.02 [34] In my view, with certain exceptions, the damages claimed are reasonable and did result directly from the defendant's breach of contract. I consider the claims for storage of the Amars' furniture and the extra moving expenses to be directly attributable to the defendant's default and recoverable. [35] I note that the storage fees to December 31, 2009, appear to be for a longer period than the delay attributable to Mr. Matthew's default. However, the claim relates only to storage until April 30, 2010. My order means that the Amars will incur a further month of storage charges. On balance I consider the storage charges claimed to be reasonable and I award the amount claimed. [36] However, it was not clear on the evidence before me whether Mr. and Mrs. Amar did in fact lose their pre-payment penalty to TD Canada Trust. In addition, I am not satisfied that the claims for additional cellular use are sufficiently connected to the defendant's default to be recoverable. I would therefore award damages in addition to specific performance in the amount of $4,602.43. COSTS [37] Mr. and Mrs. Amar claim special costs against Mr. Matthew. The law is that a litigant may be required to pay special costs if his conduct in the litigation itself amounts to reprehensible conduct, that is, conduct deserving of rebuke or sanction. Mr. Matthew has been somewhat obstreperous in the conduct of his defence of this action. However, I do not think his conduct in this case, taken as a whole, warrants an award of special costs against him in favour of Mr. and Mrs. Amar. I make this decision in the expectation that Mr. Matthew will comply with the orders that I have made in this case. [38] In all the circumstances I consider it appropriate to award costs to Mr. and Mrs. Amar on Scale B. I also direct that the amount of the damages and the Amars' costs as assessed be deducted from the net amount payable to Mr. Matthew and that payment of the amount after that deduction shall be deemed to be performance of the contract by the Amars. "The Honourable Mr. Justice Sewell"