Phoenix Construction Systems Ltd. v. 682163 B.C. Ltd.

Phoenix Construction Systems Ltd. v. 682163 B.C. Ltd.

Because neither party was ready, willing and able to complete on the stipulated date due to a mutual unresolved letter of credit issue, the buyer was not in breach; the seller's election to terminate was a repudiation and unjustified; the consent order remains in force and cannot be unilaterally nullified by the seller absent grounds attacking the formation of the agreement, and the court will order completion in accordance with the parties' September 22, 2009 agreement.

Citation
2009 BCSC 1510
Parties
Plaintiff / Buyer: Phoenix Construction Systems Ltd.; Defendant / Seller: 682163 B.C. Ltd.
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
5 November 2009
Procedural Posture
Civil — Specific Performance; Enforcement of Consent Order / Application for Directions to Complete Sale Following Consent Order (post‑settlement Enforcement)
Outcome
Application granted in part: court directs completion of sale in accordance with terms agreed on September 22, 2009 and confirms the March 23, 2009 consent order remains in effect.
Legal Topics
Specific Performance, Consent Order Enforcement, Time Is of the Essence, Repudiation, Letters of Credit, Foreclosure, Solicitors' Undertakings, Completion of Sale
Source Language
English
Contract Law Property Law Equity Civil Procedure Specific Performance Consent Order Enforcement Time Is of the Essence Repudiation +4 more

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Parties

Phoenix Construction Systems Ltd.

Plaintiff / Buyer

682163 B.C. Ltd.

Defendant / Seller

Procedural Posture

Civil — Specific Performance; Enforcement of Consent Order / Application for Directions to Complete Sale Following Consent Order (post‑settlement Enforcement)

Legal Issues

  1. 1 Whether the buyer breached by failing to complete on September 21 or 22, 2009
  2. 2 Whether the seller repudiated and breached by terminating the agreement and refusing to complete
  3. 3 What legal effect the March 23, 2009 consent order has and whether it can be nullified by the seller's termination

Ratio Decidendi

Because neither party was ready, willing and able to complete on the stipulated date due to a mutual unresolved letter of credit issue, the buyer was not in breach; the seller's election to terminate was a repudiation and unjustified; the consent order remains in force and cannot be unilaterally nullified by the seller absent grounds attacking the formation of the agreement, and the court will order completion in accordance with the parties' September 22, 2009 agreement.

Court Disposition

Application granted in part: court directs completion of sale in accordance with terms agreed on September 22, 2009 and confirms the March 23, 2009 consent order remains in effect.

Orders

  • The sale shall complete in accordance with the terms agreed between the parties on September 22, 2009.
  • The parties shall agree a completion date or, failing agreement, completion shall occur seven days following the decision (or such other date as the court may direct on application).