COURT OF APPEAL FOR ONTARIO

DATE: 2006-08-18

DOCKET: C41213

RE: Angelo Boschetti and Luciana Boschetti (Plaintiffs/Respondents) – and – Rosa Sanzo and Starcity Realty Limited (Defendants/Appellants)

BEFORE: Borins, Juriansz and LaForme JJ.A.

COUNSEL: Pellegrino Capone for the appellants Patrick Di Monte for the respondent

HEARD & ENDORSED: August 17, 2006

On appeal from the judgment of Justice Blenus Wright of the Superior Court of Justice dated December 19, 2003.

APPEAL BOOK ENDORSEMENT

[1] The purchasers did not act capriciously or arbitrarily in invoking para. 9 of the agreement of purchase and sale when the vendor was unwilling or unable to comply with the outstanding work orders. In these circumstances, pursuant to para. 9 the agreement of purchase and sale was rendered null and void and the purchasers were entitled to the return of their deposit. The trial judge found that “pursuant to para. 9 of the agreement of purchase and sale the agreement was null and void”. In our view, this finding was clearly supported by the evidence. The trial judge made no palpable or overriding error in coming to this finding, and he made no error in law. The agreement of purchase and sale was null and void and the purchasers were entitled to the return of their deposit of $5,000.

[2] Therefore, the appeal is dismissed with costs fixed in the amount of $4,000 inclusive of disbursements and GST.

[3] After 14 years we trust that this case is finally at an end.