Tran v. Aujla,


2008 BCCA 115

Date: 20080319

Docket: CA034902


Alice Nga Tran




Jaspal Singh Aujla and Surinder Kaur Aujla




The Honourable Madam Justice Newbury

The Honourable Madam Justice Levine

The Honourable Mr. Justice Smith


L.I. Barron

Counsel for the Appellants

M.S. Golden

Counsel for the Respondent

Place and Date of Hearing:

Vancouver, British Columbia

February 25, 2008

Place and Date of Judgment:

Vancouver, British Columbia

March 19, 2008


Written Reasons by:

The Honourable Madam Justice Newbury

Concurred in by:

The Honourable Madam Justice Levine

The Honourable Mr. Justice Smith

Reasons for Judgment of the Honourable Madam Justice Newbury:

[1]                The defendants, Mr. and Mrs. Aujla, appeal an order of a judge of the Supreme Court of British Columbia which declared that the plaintiff, Ms. Tran, was the owner of an undivided one-half interest in a certain property located in Surrey (the “Property”) which is held by the defendants.  The Court also ordered the partition and sale of property and the division of the proceeds of sale (net of certain specified amounts), and an accounting between the parties with respect to those proceeds.  The defendants submit that the trial judge was clearly wrong in finding that $55,000 they paid to Ms. Tran in April 2004 represented the repayment of an undocumented cash loan she had made to them, and that the $55,000 instead represented repayment of an earlier loan, evidenced by a promissory note, Ms. Tran had made to them in April 2003 to assist them to build a house on the Property.  In addition, the defendants say that if the trial judge was correct in concluding that the $55,000 was in fact part of an “investment” of $65,000 in the Property, in return for which Ms. Tran was entitled to a half-interest therein, her share of the net sale proceeds must be determined taking into account their labour and various amounts they expended in connection with the construction and maintenance of the house.

[2]                For the reasons below, I have concluded that the trial judge erred in finding that a “cash loan” was made by Ms. Tran in addition and subsequent to her advance to the defendants of $55,000 in April 2003; and that, accepting that Ms. Tran is entitled to a one-half interest in the net proceeds of the Property, the parties intended and agreed that her half-interest would be in respect of the “profits” of the venture, such that her share must reflect the Aujlas’ contributions, financial and otherwise.

Factual Background

[3]                Since the facts of this case are likely to be of interest only to the parties, I do not intend to set out the evidence in detail which was before the trial judge.  The reader may refer to her Reasons, which are indexed as 2007 BCSC 801.  It is fair to say that the evidence was scant and largely unsatisfactory.  The sole evidence proffered by Ms. Tran in support of her claim to an interest in the Property was her testimony as follows:

Q.        Now, did you -- did you enter into an agreement with Mr. and Mrs. Aujla regarding the property on 72nd Avenue?

A.         We agreed on that I’ll buy that piece of land to build a house on it.

Q.        And what would happen after the house was built?

A.         It will be shared at 50 -- 50 percent, and if we make a profit, we’ll split the half.

Q.        Please repeat that.  I --

A.         I put in -- I put in 65,000.  After the house is sold, I will be reimbursed that 65,000.  Any profit or the differences will be split between me and her. …

Q.        And just to make it clear, in terms of the agreement that you had with Mr. Aujla and Mrs. Aujla regarding the sale of the house, what is your understanding, what’s -- what is to happen to the money after the house is sold?

A.         After the house is sold, I expect that I will get the 65,000 paid back and the profit will be splitting in half 50/50.

Q.        And how much -- so you would get 50 percent of the profit?

A.         Yes. 

She was not cross-examined on this evidence and provided no further elaboration.

[4]                This testimony was muddied considerably by three pieces of documentary evidence.  The first was a “Partnership Agreement” dated “as of” May 1, 2003 between Mr. Aujla and Ms. Tran in which they agreed to carry on business in partnership under the name “A & J Construction”.  The document contained the kind of clauses that would be expected in a partnership agreement, including a promise by the parties to devote their “whole time, labour and attention” to the partnership, and a promise by each to contribute $100 to the partnership's bank account.  Both parties denied reading the Agreement before they signed it, and it appears that none of the terms was ever complied with. Ms. Tran, who does not speak English, did not rely on this document at trial, and indeed pleaded that “The terms of this agreement were and are not understood by the Plaintiff and are unconscionable, vague and void for uncertainty.”  The document may therefore be put to one side, although its existence does figure elsewhere in the evidence.

[5]                The second document is a promissory note also dated as of May 1, 2003, in which Mr. Aujla acknowledged that he was indebted to Ms. Tran in the sum of $55,000 and promised to pay “upon the completion and sale of their partnership house construction located on 14881 72 Avenue, Surrey, B.C., the principal sum of $55,000 in lawful money of Canada with without [sic] interest thereon.”  It would appear that by the date of the note, Ms. Tran had advanced a total of $45,000 to the Aujlas.  Their evidence was that the plaintiff was to receive back $55,000 as payment for loan of $45,000.  It appears that another $10,000, represented by two cheques was advanced by the plaintiff on or about May 15, 2003.

[6]                The Aujlas completed their purchase of the Property, a bare lot, on April 15, 2003 for $161,632.12, of which approximately $57,000 was required in cash at closing.  The defendants then built a house on the lot, with Mr. Aujla participating personally in the construction.  As the trial judge noted at para. 29 of her reasons, he testified that he had not needed and had not used the $45,000 advance to buy the Property per se but that he had “wanted to have these funds on hand to pay tradesmen during the course of construction so he had deposited them in the bank and did not use them until October or November of 2003.”  As the trial judge noted, he agreed at trial that $10,000 was “a lot of interest to pay, far more than what he was paying on the mortgage, but said that the bank would not give him an additional loan.”  (Para. 29.)  Following completion of the house, the Aujlas moved into it and refused the plaintiff’s demand that they sell the Property and repay “her share” to her.

[7]                The last material documentary evidence consisted of three cheques, two for $25,000 and one for $5,000 dated April 7, 13, and 26, 2004 respectively, paid to Ms. Tran by the Aujlas.  Each of these stated “loan payback” on its face.  Ms. Tran denied that she had written these words on the cheques, or that she received this money in payment of the previous loan.  Instead, she testified that on an unspecified date in 2004, she had advanced another $55,000 in cash to Ms. Aujla for an unspecified purpose. She had obtained the money to lend the defendants, she said, by borrowing from various people, including $10,000 from her friend Duy Pham.  The trial judge summarized the plaintiff’s evidence regarding this loan as follows:

Counsel for Mr. and Mrs. Aujla put it to Ms. Tran that she had never lent Ms. Aujla $55,000 in cash in 2004, but Ms. Tran firmly rejected this proposition.  She was asked why she did not obtain a receipt for the alleged cash loan and responded that there was no paperwork because the loan was for cash.  Three cheques written by Mr. Aujla in April 2004 for the total sum of $55,000 were put to Ms. Tran who confirmed that she had received them and explained that they were repayment for the cash loan.  She rejected counsel’s suggestion that, on the contrary, the $55,000 in cheques written in April 2004 were for repayment of the debt reflected in the document dated May 1st, 2003, and entitled, “Promissory Note.”  [Para. 19.]

Ms. Tran’s assertion that she had borrowed $10,000 of the cash from Duy Pham (whom she called as a witness) was contradicted by his testimony that he had not done any business with Ms. Tran except in connection with a loan in September 2003, which was repaid within a month.

[8]                Mr. and Mrs. Aujla contradicted much of Ms. Tran’s testimony.  Mr. Aujla testified that two cheques dated May 15, 2003 for $4,000 and $6,000 respectively were in fact payments for work he had done in renovating a rental house owned by Ms. Tran.  As earlier mentioned, Mr. Aujla acknowledged that he had borrowed $45,000 from her, and that the $55,000 promissory note reflected that loan plus $10,000 in “interest”.  He claimed to have told Ms. Tran that he might sell the house once it was built, or that he might not.  He said the three cheques dated April 2004 totalling $55,000 had represented repayment of the promissory note, and he denied that Ms. Tran had ever lent him any money after the loan in April 2003.  The trial judge summarized his testimony concerning the “Partnership Agreement” and the promissory note as follows:

Mr. Aujla was asked about the document entitled, “Partnership Agreement.”  He said that it was Ms. Tran who asked him to sign the document and that it was her idea to call their proposed partnership A & J Construction.  He testified that he received a call from Ms. Tran one day asking that he attend at Mr. Chaudrey’s office to sign the agreement, which he did.  He noted that Mr. Chaudrey’s office was in the same building as Ms. Aujla’s building, but claimed not to know him.  He said that he did not read the agreement, which he understood referred to the proposed partnership to import house construction materials.

Mr. Aujla noted that, despite the words of the promissory note, he did not sell the house before he paid Ms. Tran the $55,000 he said he owed her.  He claimed that he did this because Ms. Tran said she needed the money so he went to the bank and obtained funds with which to repay the loan.  He also said that when he initially borrowed the money, Ms. Tran did not say when he had to repay it and that it could have been five or 10 years from the date of the loan.  [At paras. 30-1.]

[9]                Mrs. Aujla, who was a real estate agent, denied receiving any money from Ms. Tran for the acquisition of the Property and denied ever borrowing any money from Ms. Tran. Indeed, she testified that Ms. Tran had come to her in January 2003 saying she needed money for a house she was building in Vietnam.  The trial judge continued:

… Ms. Aujla testified that she told Ms. Tran she could not give her money, but agreed, at Ms. Tran’s suggestion, to give her some jewellery.  She claimed that Ms. Tran paid her for the jewellery when she sold the rental house, which sale took place in early 2003.  She said that cheques number 32 and 33, each for $10,000, were received from Ms. Tran in payment for the jewellery.  Ms. Aujla testified that she, Ms. Aujla, wrote the words “loan payback” on the cheques.  [At para. 32.]

[10]            It is safe to say, then, that the trial judge was presented a perplexing credibility contest.   As she noted, the credibility of witnesses “must be tested against those facts that are not seriously in dispute and with a preponderance of the evidence and the probability surrounding the events”: Faryna v. Chorny (1951) 4 W.W.R. (N.S.) 171, [1952] 2 D.L.R. 354 (B.C.C.A.).  Applying this test, she concluded that Ms. Tran’s evidence was preferable to that of Mr. and Mrs. Aujla, whose account she described as “inherently improbable and inconsistent with the documentary evidence in a number of respects.”  Considering all the evidence, she found that the following facts, inter alia, had been proven by Ms. Tran upon a balance of probabilities:

Taking into account all of the evidence and reasonable inferences to be drawn therefrom, as well as my assessment of credibility, I find that the following facts have been proven by the plaintiff on a balance of probabilities.

1.         Mr. and Mrs. Aujla acted jointly and in concert with one another with full authority to do so in all of their dealings with Ms. Tran regarding the property.  This finding is based primarily on Ms. Tran’s evidence which I accept, including her testimony that Ms. Aujla made the initial investment approach and engaged in most of the communication with Ms. Tran.  The funds were paid to both Mr. and Mrs. Aujla.  Mr. Aujla signed the partnership agreement and promissory note, but Ms. Aujla made the arrangements for them to be signed and legal title to the property is held in joint tenancy by both Mr. and Ms. Aujla. …

3.         At some point in late 2002 or early 2003, Ms. Aujla approached Ms. Tran about the possibility of investing in the purchase of land.  She took Ms. Tran to look at the property which at the time was bare land, and proposed that Ms. Tran on the one hand and the Aujlas on the other enter into an agreement for the purpose of purchasing the land, building a house on it, and then selling the house for a profit.

4.         I am unable on the evidence to make a finding as to the precise words spoken by Ms. Aujla in making her investment proposal to Ms. Tran.  I am, however, able to find on a balance of probabilities the general mutually understood import of the language that she used.  In particular, I find Ms. Aujla told Ms. Tran that if she would contribute $55,000 toward the purchase of the property, Mr. Aujla would arrange for a mortgage, build a house, and sell the house when construction was completed.

5.         Ms. Aujla also told Ms. Tran that in exchange for her $55,000 investment, she (Ms. Tran) would have a 50-percent ownership share in the property and receive 50 percent of any net profit following the sale of the house.  She advised Ms. Tran that although she would have a 50-percent ownership share in the property, it was not necessary for her name to appear on title as an owner.  She also advised Ms. Tran that it would be easier to get a mortgage if Mr. Aujla’s name was on title as he was a builder. …

7.         Taking into account Ms. Aujla’s advice, Ms. Tran accepted her proposal and contributed $55,000 toward the purchase of the property in the manner described in her testimony.  In particular, Ms. Tran paid $55,000 to Mr. Aujla and Ms. Aujla by way of a $25,000 bank draft, two cheques for $10,000 each, and the direct deposit of $10,000 into Ms. Aujla’s bank account in April 2003.  She also contributed an additional $10,000 by way of two cheques in May 2003.

8.         I will refer hereafter … to the agreement between Ms. Tran on the one hand and Mr. and Ms. Aujla on the other for the $65,000 investment as the 50-50 agreement.  The essential terms of the 50-50 agreement were not reduced to writing.  Some of the words found in the document entitled, “Promissory Note,” specifically the promise “to pay upon the completion and sale of their partnership house construction located on 14881 72nd Avenue, Surrey, B.C. the principal sum of $55,000 in lawful money of Canada without interest thereon,” are a partial and inaccurate written reference to the 50-50 agreement.  But the promissory note does not fully reflect the agreement’s terms.  Similarly, the document entitled, “Partnership Agreement” signed by Ms. Tran and Mr. Aujla does not record the terms of the 50-50 agreement concluded by Ms. Tran on the one hand and Mr. and Ms. Aujla on the other, although the reference to a “partnership” regarding “house construction” is also a partial written reference.  I accept Ms. Tran’s evidence regarding the circumstances in which these documents were created and signed.

9.         I interpret Ms. Tran’s evidence that she expected to be reimbursed $65,000 plus split the profit in half to mean that she and the Aujlas mutually assumed that her 50-percent share of the net profit recoverable following the sale of the property would exceed the $65,000 she had invested. …

11.       Mr. Aujla and Ms. Aujla applied the $55,000 initially provided by Ms. Tran in April 2003 to the purchase of the property and applied the $10,000 provided by Ms. Tran in May 2003 to property-related expenses.  I accept as accurate the information contained on the purchaser’s statement of adjustments in Exhibit 1 and, in particular, accept that the balance due on closing was $57,037.27.  I also accept that Mr. and Ms. Aujla obtained mortgage financing of approximately $300,000 in connection with the purchase of the property and house construction.

12.       I conclude that pursuant to the 50-50 agreement when Mr. Aujla and Ms. Aujla obtained legal title to the property, they did so intending to hold an undivided one-half interest in the property in trust for Ms. Tran’s benefit.  This intention is inferred from Ms. Tran’s evidence and the description of the property as a “partnership house” on the promissory note.  I also conclude from the evidence that Mr. and Ms. Aujla intended to sell the property after construction was complete and divide with Ms. Tran equally the net proceeds of sale after paying out all registered charges.

13.       I am unable on the evidence to make a finding as to the exact cost to Mr. and Ms. Aujla of constructing the house and carrying the mortgage and other costs and responsibilities associated with acquisition and development of the property.  I am, however, able to find on a balance of probabilities that Mr. and Ms. Aujla would not have been able to purchase the property without Ms. Tran’s $65,000 contribution, and this fact motivated them to enter into the 50-50 agreement.  I infer from the existence of the 50-50 agreement that the overall value of Mr. and Ms. Aujla’s contribution to the purchase and development of the property is, for them, roughly equivalent to that of Ms. Tran.

14.       In addition to being able to purchase and develop the property as a result of Ms. Tran’s contribution, Mr. and Ms. Aujla have enjoyed the benefit of living in the house since December 2003.

15.       At some point after the property was acquired, Mr. and Ms. Aujla decided that they did not want to sell as promised to Ms. Tran.  Rather, they decided that they wanted to use the house as their primary residence.

16.       After the house was built, Ms. Tran asked Mr. and Ms. Aujla to sell it and provide her with her 50-percent share of the net profit, but Mr. and Ms. Aujla refused.  Instead, they remained in the house where they continued to reside at the time of the trial.

17.       I accept Ms. Tran’s evidence regarding the $55,000 cash loan she made to Ms. Aujla in 2004 and repaid by cheques number 215, 216, and 264.  It follows that I reject Mr. and Ms. Aujla’s evidence regarding the alleged jewellery transaction and claim to have repaid the $55,000 referenced in the document entitled, “Promissory Note.”  [At para. 43; emphasis added.]

[11]            The trial judge turned next to the principles of law applicable to Ms. Tran’s claims in trust and unjust enrichment.  She found that the three certainties necessary for the existence of an express or implied trust had been met, and that in addition, it would be appropriate to impose a constructive trust on the basis of unjust enrichment.  In her analysis:

I am satisfied that Ms. Tran has met the requirements for establishing unjust enrichment in the circumstances of this case.  Where money is transferred from plaintiff to defendant, there is an enrichment.  Accordingly, Mr. and Ms. Aujla have been enriched by the provision of Ms. Tran’s $65,000 which they used to purchase the property in which they continue to reside.  Ms. Tran has been correspondingly deprived of the use of those funds since 2003.  Mr. and Ms. Aujla accepted and used Ms. Tran’s money for their own benefit and there is no juristic reason, such as contractual entitlement, for them to retain that enrichment.  On the contrary, the parties expected that they would not do so.  Rather, it was expected that the house would be built and sold with the net profit to be divided into two equal shares.  [At para. 50.]

[12]            Accordingly, the trial judge imposed a constructive trust and granted the order for partition and sale, and the accounting that had been sought by Ms. Tran.  The specific terms of the Court’s order with respect to the partition and distribution of proceeds were as follows:

There shall be a partition of the parties’ respective interests in the Property and the Property shall be sold.  The net proceeds from the sale of the Property after payment of real estate commission, the amount owing with respect to the any [sic] charges registered against the title to the Property and any adjustments shall be divided equally such that the Defendants together receive 1/2 of the said proceeds and the Plaintiff shall receive 1/2 of the said proceeds.

There shall be an accounting between the Plaintiff and the Defendants with respect to the proceeds from the sale of the Property. 

The parties were given leave to apply for directions with respect to the sale of the Property.

[13]            Counsel for Ms. Tran has evidently taken the position that when the net proceeds from the sale of the Property are determined, the defendants will not be entitled to have taken into account either the value of Mr. Aujla’s own labour in constructing the house, nor the cost of materials, nor their “carrying costs” associated with the Property, including property taxes, insurance, interest on the mortgage, and other items that would normally be taken into account in determining profits.  In this regard, counsel for the plaintiff relies not only on the terms of the Order, but also on the trial judge’s inference, at subpara. 13 of para. 43 of her reasons quoted above, that “the overall value of Mr. and Mrs. Aujla's contribution to the purchase and development of the [P]roperty is, for them, roughly equivalent to that of Ms. Tran.”

On Appeal

[14]            The appellants advance three discrete grounds of appeal, which together are said to support an overall conclusion that as a result of the judgment pronounced by the court below, “it is the plaintiff who would have been [unjustly] enriched by the contribution of the defendants, and the defendants who will be correspondingly deprived.”  Not only would they be required to pay (again) the $55,000 which they say they have already repaid to Ms. Tran; but they would not be entitled to a credit for their labour, materials and carrying costs in the determination of their one-half share in the ultimate sale proceeds of the property.  In response, counsel for the plaintiff simply took the position that the judge’s findings of credibility were reasonable and that the defendants had not made a counterclaim to have their contribution to the Property recognized in the calculation of their share of the sale proceeds.  In a similar vein, Mr. Golden contended in oral argument that the defendants had failed to adduce evidence at trial that would have supported their claim to what I will refer to as  “carrying costs”, with the result that the trial judge’s inference at para. 43(13) quoted above could not be said to be unreasonable.

[15]            It will be more useful, however, to turn to the defendants’ submissions as to the specific errors they allege on the part of the trial judge.  I turn first to their challenge to the finding that Ms. Tran made a “cash loan” of $55,000 to Mrs. Aujla in 2004, which was repaid by the three cheques dated in April 2004.  The trial judge did not address some important considerations that were relevant to this finding — the unlikelihood that such a loan would have been made by Ms. Tran without any documentation whatsoever; the fact that the amount of the alleged loan was exactly the amount owing by the Aujlas under the promissory note; the fact there was no evidence as to the purpose of the loan and no evidence as to the Aujlas’ receipt of or being in possession of such funds; and the fact that Ms. Tran’s own witness contradicted her testimony as to where she had obtained the funds to make such a loan.  Nor did the trial judge make any finding as to Mr. Duy Pham’s credibility.

[16]            In all the circumstances, notwithstanding the high degree of deference which an appellate court must pay to the findings of fact of a trial judge, I am driven to the conclusion that this finding was clearly wrong and did not reflect the “preponderance of the probabilities which a practical and informed person would readily recognize as reasonable” in the circumstances.  It simply defies credulity to suppose that an entirely new loan in the same amount as the previous one, but this time in cash, was made for an unspecified purpose by Ms. Tran and quickly repaid by a couple who already owed her a substantial amount (and who were evidently not wealthy by any means), or that the purpose of the Aujlas' payment to Ms. Tran was anything other than the repayment of their 2003 loan.

[17]            The remaining two errors which the Aujlas allege on the part of the trial judge relate to her “inference” concerning the value of the defendants’ contribution to the Property.  In particular, the defendants say the inference was unreasonable and that the trial judge erred by attempting “to construct or create the terms of an oral contract between the parties”.  The defendants emphasize that (again setting aside the Partnership Agreement), the only evidence regarding the terms of Ms. Tran’s loan to the Aujlas was her testimony quoted above at para. 3 of these reasons.  They say it was not reasonable to infer from this evidence that they had agreed that no matter how much they contributed to the purchase of the Property, the construction of the house, and its upkeep, they would receive no credit therefor.  In their submission, this result cannot be justified on the basis of contract or unjust enrichment.

[18]            In my respectful view, the impugned factual inference is inconsistent with the plaintiff’s own evidence, which was to the effect that “any profit” would be split between her on the one hand and the Aujlas on the other.  It seems to me that in its ordinary sense, the word “profit” connotes a “net” concept – the excess of returns over outlay.  (See McClelland v. Hyde [1942] N.I. 1 at 12 (C.A.)).  As Atkinson J. stated in Rushden Heel Co. Ltd. v. Keene, Rushden Heel Co. v. Inland Revenue Commissioners [1946] 2 All E.R. 141 (K.B.D.): “’Profits’, as it seems to me, must not be confused with receipts. Profits consist of a sum arrived at by adding up the receipts of a business and by deducting all the expenses and losses, including depreciation and the like, incurred in carrying on the business.”  Or, as was stated by Ferguson J. in Brandt v. W.G. Tatham Pty. Ltd. [1965] N.S.W.R. 126 (S.C.): “In ordinary parlance profit means financial gain, that is to say money received over and above the money expended.”  (At 127; emphasis added.)  (See also Canderel Ltd. v. Canada [1978] 1 S.C.R. 147 at para. 30 and generally Stroud's Judicial Dictionary of Words and Phrases, Vol. 3, at 2157-60.)

[19]            If this is correct, it was not necessary for the defendants to advance a counterclaim in order to have their contributions recognized.  It was incumbent on the court below to make a determination as to what amounts were contributed by the Aujlas to the property, excluding all amounts allocable to their own living expenses.  The fact the trial judge found herself unable to make a finding as to the “exact cost” to them of constructing the house and carrying the mortgage and other costs did not, with respect, lead logically to the conclusion that the Aujlas had agreed that the value of their own contribution would be roughly equivalent to that of Ms. Tran.  Rather, the trial judge should have ordered a reference to the Registrar to determine which amounts are properly allocable to the acquisition and maintenance of the Property (including the construction of the house thereon) up to the date of sale.  It is unreasonable to suppose that if indeed Mr. Aujla agreed to pay half the profits to Ms. Tran, he did not intend for his proper costs and outlays to be reimbursed (just as Ms. Tran was reimbursed for her actual contribution) or for the normal meaning of “profit” to apply.

[20]            I would allow the appeal to the extent of deleting paras. 3 and 4 of the trial judge’s order and substituting the following:

“3.        There shall be a partition of the parties’ respective interests in the Property, which shall be sold.  From the proceeds of sale of the Property there shall be paid any real estate commission and the amount properly owing under any charges registered against the Property.  Any amount remaining shall be accounted for as follows:

a)         There shall be allocated and reimbursed to the defendants an amount equal to:

                                    i)          the value of labour expended on the construction of the house on the Property by Mr. Aujla personally;

                                    ii)         the actual cost of labour actually expended on the construction and paid for by the defendants;

                                    iii)         the actual cost of fixtures, materials and supplies expended by the defendants to parties at arm’s length with them on the house construction;

                                    iv)        the actual amount of real property taxes and house insurance (not including insurance of the contents) paid by the defendants in respect of the Property up to the date of sale;

                                    v)         the actual amount of interest paid by the defendants on all registered charges against the Property up to the date of sale; and

                                    vi)        the actual amount of expenditures made by the defendants to parties at arm’s length with them for the reasonable maintenance and upkeep of the Property, including landscaping and exterior painting and cleaning, but excluding maintenance of the interior of the house;

all as proven to the satisfaction of a judge (or a Registrar is so directed by a judge) of the Supreme Court of British Columbia; and

b)         Any amount of proceeds remaining (the “net proceeds”) shall be divided equally between the plaintiff on the one hand and the defendants on the other.

4.         It is hereby declared that the amount of $65,000 found by this court to have been invested by the plaintiff in the Property has been repaid in full.”

“The Honourable Madam Justice Newbury”

I Agree:

“The Honourable Madam Justice Levine”

I Agree:

“The Honourable Mr. Justice Smith”