David Richard Rothwell

Supplementary endorsement addressing distribution of funds held in trust following a prior decision determining entitlement between vendor and purchaser in a real estate transaction.

The court had previously invited written submissions regarding entitlement to GST included in the purchase price and the cost of steel plates allegedly lost after delivery to the job-site.

After reviewing the additional submissions, the court concluded that the purchase price under the agreement of purchase and sale was $500,000 plus GST and that GST had been properly paid.

The court also accepted that $7,500 should be deducted for the steel plates.

The court directed the trust funds to be distributed primarily to the vendor with a smaller amount to the purchasers and added a corporate purchaser nunc pro tunc as a co‑plaintiff/applicant.

A commercial dispute arose following a land purchase agreement that included a separate agreement for the purchase of custom-fabricated structural steel, with $525,000 held in trust pending verification of the steel.

The purchaser claimed entitlement to the trust funds after failing to verify the steel within the contractual period, arguing that a prior settlement had been reached and that verification could not reasonably be completed.

The court found that no binding settlement was reached during negotiations between the parties.

However, the court held that the purchaser failed to act reasonably and in good faith in attempting to complete verification, particularly by refusing a reasonable proposal to share the cost of reproducing fabrication drawings necessary for verification.

The vendor was therefore entitled to most of the trust funds, subject to a possible adjustment relating to GST and steel plate costs.