The Court of Appeal upheld the forfeiture of a condominium deposit after the purchasers affirmed the agreement despite the vendor's repeated delays, but vacated the costs award against the purchasers.
The appellants, purchasers of a condominium unit, appealed the dismissal of their claim for damages arising from the vendor's breach of an agreement of purchase and sale and their request for relief from forfeiture of their deposit.
The vendor repeatedly extended the occupancy date, which the trial judge found constituted a breach.
However, the trial judge also found that the purchasers had affirmed the agreement by continuing to press for performance and denied relief from forfeiture.
The Court of Appeal upheld the trial judge's findings on repudiation and affirmation, concluding that the purchasers' conduct was consistent with treating the agreement as subsisting.
The Court also affirmed the trial judge's refusal to grant relief from forfeiture, emphasizing the discretionary nature of the remedy and the vendor's incurred expenses.
However, the Court found that the trial judge erred in principle in assessing costs by not adequately considering the vendor's net profit from the resale of the unit.
Consequently, the Court dismissed the appeal on the main issues but granted leave to appeal the costs award, vacating the original costs order and directing each party to bear their own costs for both the trial and the appeal.
