COMM 393 Chapter Notes - Chapter Case: Nova Scotia Supreme Court, Summary Judgment, Specific Performance
COMM 393 Saturley v. Lund Case Briefs
[2005] N.S.j. No. 464
2005 NSSC 309
239 N.S.R. (2d) 166
Nova Scotia Supreme Court
November 9, 2005
Facts
• The defendant agreed to purchase from the plaintiff their residence for $243,000.00. There were
no limiting conditions on how the defendants would finance the purchase price, and the sale was
set to close on August 20, 2004.
• The defendant also entered to an agreement to sell their house to a third party for $410,000.00,
closing on August 4, 2004.
• On July 23, 2004, the defendants discovered that oil had leaked into the basement and ground,
and their sale was aborted. They were unable to purchase the plaintiff’s property, and it is not
disputed that the plaintiffs were ready to commence the sale at the intended closing date. The
defendants remedied the oil problem and sold their property the next year for $415,000.00.
• The plaintiffs are suing for specific performance or damages for breach of contract. This
application is for summary judgment with respect to liability only, not specific performance or
other remedy
• The defendants claim that an implied condition of the agreement of purchase and sale was that
the offer was conditional on them selling their own property. Since that did not happen, they are
argue that since events beyond their control happened, they are not bound by the agreement to
purchase. They also submit that frustration applies as it is impossible for them to complete the
contract.
Issues
• Is this case eligible for summary judgment?
• Are the defendants liable for breach of the contract of purchase and sale?
Reasons
Law: Bank of Nova Scotia et al. v. Dombrowski
• “…enable a plaintiff to obtain summary judgment without trial if he can prove his claim clearly and
if the defendant is unable to set up a bona fide defence, or raise an issue against the claim which
ought to be tried…”
• “the defendant is bound to show that he has some reasonable ground of defence to the action”
• the plaintiffs have clearly proven their case – the defendants do not dispute they entered into an
agreement of purchase and sale relied on by the plaintiffs, and that the plaintiff was ready and
willing to complete the sale on the date specified
The defendants submit that there was an implied term of the agreement for purchase and sale that it was
conditional on the defendants’ selling their property
• the plaintiffs were not aware the defendants were selling their property and the issue was never
raised in negotiations
Law: Kesmat Investment Inc v. Canadian Indemnity Company, [1985] N.S.J No. 109
• "…frustration occurs whenever the law recognizes that without default of either party a
contractual obligation has become incapable of being performed because the circumstance in
which performance is called for would render it a thing radically different that which was
undertaken by the contract…”
• “there must be … such a change in the significance of the obligation that the thing undertaken
would, if performed, be a different thing from that contracted for”
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Document Summary
Facts: the defendant agreed to purchase from the plaintiff their residence for ,000. 00. They were unable to purchase the plaintiff"s property, and it is not disputed that the plaintiffs were ready to commence the sale at the intended closing date. The defendants remedied the oil problem and sold their property the next year for ,000. 00: the plaintiffs are suing for specific performance or damages for breach of contract. Since that did not happen, they are argue that since events beyond their control happened, they are not bound by the agreement to purchase. They also submit that frustration applies as it is impossible for them to complete the contract. Law: bank of nova scotia et al. v. dombrowski. Law: kesmat investment inc v. canadian indemnity company, [1985] n. s. j no. There must be such a change in the significance of the obligation that the thing undertaken would, if performed, be a different thing from that contracted for .
