Mark I. Wainberg

The appellant appealed a summary trial decision dismissing her claim for $32,000 under an equity-splitting agreement related to the sale of the respondent's house.

The trial judge had found the agreement unenforceable because the appellant was not a licensed real estate agent under the Real Estate and Business Brokers Act, and because the agreement was unconscionable due to the respondent's vulnerability and unequal bargaining power.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's conclusion that the bargain was unfair and unconscionable.

The respondent leased a BMW and installed extensive aftermarket modifications.

The airbags deployed without a collision, and BMW refused warranty coverage, citing the modifications.

The trial judge found BMW liable for breach of warranty, concluding the exclusion clause was ambiguous.

On appeal, the Divisional Court allowed the appeal and dismissed the action.

The majority held that the trial judge erred in failing to require the respondent to prove the defect was not caused by the modifications, and found the exclusion clause unambiguously excluded coverage for modifications that may result in damage to original components.