| |
Posted Thursday, January 16, 2025:
672047 B.C. Ltd. v. Johal,
2024 BCCA 427
–
2024/12/20
Court of Appeal
The appellants supplied funds to the respondents to help them purchase a home. After the respondents separated and listed the home for sale, the appellants commenced an action against the respondents, claiming the funds were not a gift. At trial, the appellants took the position that the individual appellant’s intention, and not the intention of his company, was determinative. The trial judge concluded the funds were a gift and dismissed the action. On appeal, the appellants now argue the trial judge erred in failing to separate the intentions of the individual and his company. Held: Appeal dismissed. The appellants cannot argue a position on appeal inconsistent with their position at trial.
more ...
|
Callahan v. Ernst & Young Inc. (as Liquidator),
2025 BCCA 11
–
2025/01/16
Court of Appeal
0081092 B.C. Ltd. appointed Ernst & Young Inc. as liquidator of its assets pursuant to s. 319 of the British Columbia Business Corporations Act. On the application of the liquidator, the chambers judge made an order approving a process for the sale of the company’s assets. The appellant, a minority shareholder in the company, appealed the order arguing that the court lacked jurisdiction to advance the mandate of a privately appointed liquidator. Held: The appeal was dismissed with these reasons to follow. The appellant was unable to demonstrate any basis for his proposition that the court lacked jurisdiction to make the order solely because the liquidation was commenced voluntarily by the company. The decisions made by the chambers judge in crafting the terms of the order involved broad exercises of discretion and were entitled to considerable deference on appeal. The appellant was unable to show that the chambers judge acted on a wrong principle, failed to give adequate weight to relevant considerations, or made an order that was clearly wrong.
The application of three of the respondents for increased costs is dismissed. Each of the respondents is entitled to ordinary costs.
more ...
|
Posted Tuesday, January 14, 2025:
Arbutus Bay Estates Ltd. v. Canada (Attorney General),
2025 BCCA 10
–
2025/01/14
Court of Appeal
The appellant in prior litigation challenged the validity of an easement allowing access over its property to users of a public wharf. The Court determined the easement to be valid, and granted the counterclaimed remedy of rectification. In the present claim, the appellant claims the respondents failed to disclose an alleged agreement to decommission the wharf. The appellant also claims that this Court erred in the prior litigation in rectifying the easement. The respondents successfully obtained an order striking the present claim. The appellant appeals from that order.
Held: Appeal dismissed.
It is plain and obvious that the appellant has not alleged a viable cause of action. The alleged undisclosed agreement is not relevant to the remedy of rectification. Further, the appellant’s claim seeks to re-argue issues that it lost in the prior litigation, knowing that the wharf continues to be operated in reliance on the easement, and is an abuse of process and vexatious.
more ...
|
Posted Monday, January 13, 2025:
NV Highway Properties Ltd. v. 1155204 B.C. Ltd.,
2025 BCCA 8
–
2025/01/13
Court of Appeal
The appellants argue that the trial judge erred in law by finding a binding contract between the parties unenforceable based on the principle of nemo dat quod non habet (“no one can give what they do not have”). The contract was for the sale of a number of properties, and included a share purchase option which the respondents ultimately elected. However, the shares were owned by a holding company which was not a party to the contract. Held: Appeal allowed. Nemo dat is a principle of property law typically applied where there is a dispute over entitlement to property or priority of interests. Nemo dat does not operate to render contracts unenforceable on the basis that the seller does not own what they are contracting to sell. Accordingly, the trial judge erred in holding that nemo dat rendered the parties’ otherwise binding contract unenforceable because the owner of the shares was not a party to the contract. The evidence showed that the appellants were capable of conveying the shares to the respondents at the time of closing.
more ...
|
Email page
Print page