CITATION: Chandrawinata v. Hyams, 2015 ONSC 7464

COURT FILE NO.: CV-14-512341

DATE: 20151202

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

JENNIFER CHANDRAWINATA and WILLIAM LIM

Plaintiffs

– and –

sandra hyams and RE/MAX REALTRON REALTY INC.

Defendant

Chung C. Huong, for the Plaintiffs

Maurice Vaturi, for the defendant

HEARD: November 18, 2015

ENDORSEMENT

HOOD j.

nature of Motion

[1] This is a motion for summary judgment brought by the plaintiffs. They are seeking the return of a $30,000 deposit from a failed real estate transaction plus damages of $20,000.

[2] For the following reasons, the plaintiffs are granted a declaration that the defendant, Sandra Hyams, repudiated the agreement of purchase and sale between the parties and are awarded nominal damages in the amount of $1. The deposit is ordered to be paid to the plaintiffs, and the balance of the claim is dismissed with costs payable by the plaintiffs to the defendant, Sandra Hyams, in the amount of $6,600 inclusive of HST and disbursements. There are no costs for or against Re/Max Realtron Realty Inc. If the Certificate of Pending Litigation is still registered on title, it is ordered discharged.

Facts

[3] On August 27, 2014 the plaintiffs executed an offer to purchase a residential property at 160 Brickstone Circle, Vaughan, Ontario for $690,000. On August 28, 2014 Sandra Hyams (“the defendant”) accepted the offer along with the $30,000 deposit. The closing was set for November 3, 2014.

[4] The defendant did not want to sell her home but felt compelled to do so due to the financial situation she and her husband then found themselves in. The company her husband worked for was going through financial difficulties and his salary had been withheld for close to two months. With no savings and increasing bills she decided that her only option was to sell her house.

[5] However, on August 29, 2015, once day after executing the agreement of purchase and sale, her husband’s company advised that it had raised funds and it released the withheld salaries including her husband’s. Without the necessity to sell, the defendant notified the plaintiffs on August 31, 2014 that she would not be going through with the sale.

[6] The plaintiffs were not prepared to accept the defendant’s repudiation and issued a statement of claim on September 17, 2014 seeking specific performance, with an alternative claim for return of the deposit plus damages of $20,000.

[7] The defendant and the defendant, Re/Max Realtron Realty Inc., who is holding the deposit, have been prepared to return the deposit to the plaintiffs in exchange for a release or pursuant to a court order. The plaintiffs refused to take back the deposit in order to keep their claim for specific performance alive.

[8] The plaintiffs ended up purchasing another property in Toronto on March 16, 2015. There is no evidence from the plaintiffs as to what this property was purchased for, but presumably it was for less than $690,000 as no argument was made before me by counsel for the plaintiffs that in mitigating their loss they had incurred damages as a consequence of the admitted breach in buying a more expensive property.

[9] The plaintiffs are no longer seeking specific performance. All of the evidence filed by both sides as to uniqueness is irrelevant. The argument by the plaintiffs is that they are entitled to equitable damages of $20,000 instead of specific performance, or alternatively, common law damages of $20,000. No case law was provided by the plaintiffs on this distinction and whether it still actually exists. I do not think that it does and I believe that the calculation of damages, if any, should not turn on a distinction between damages at common law or equity but instead should be calculated as any other contractual damages – to put the plaintiffs in the position they would have been but for the defendant’s breach.

[10] The defendant’s breach took place on August 31, 2014. The plaintiffs argue that the date for calculation of their loss should not be the date of breach but should be the original closing date of November 3, 2014. They rely on the case of Chai v. Dabir, 2015 ONSC 1327 for this proposition. They then argue that the value of the property, 160 Brickstone Circle, rose between the agreement and the closing date of November 3, 2014 by $50,000 to $70,000, and that they should be entitled to damages of $20,000.

[11] This argument is flawed for a number of reasons. Chai does not stand for the proposition put forward. In Chai Justice Stinson did not find that damages should be assessed as at the date of the original closing. What he found, as set out at paragraph 47 of his decision, was that in order to acquire a property that was equivalent to the one the defendants had agreed to sell for $685,000, the plaintiff, Chai, was forced to pay $760,000 or $75,000 more for another property. This was the measure of the plaintiff’s damages. It had nothing to do with a valuation as at the original date of closing.

[12] Nor is there is any evidence before me that the value of the property herein, 160 Brickstone Circle, increased by $50,000 to $70,000 in two months’ time or by the original closing date of November 3, 2014. All there is is a letter of opinion from a real estate broker that the value of the property as at September 1, 2015, almost 1 year later, was between $740,000 and $760,000, or $50,000 to $70,000 more than the price at September 1, 2014 on the date of breach. Firstly, this is not evidence from a real estate appraisal expert but is merely a letter of opinion. Secondly, even if I was to accept this evidence, which I am not prepared to do, it bears no relationship to the facts of this case. It is 1 year after the breach. There is no evidence as to the value of the replacement property at September 1, 2015 or between March 16, 2015 and September 1, 2015. Perhaps it also rose by $50,000 to $70,000 in the year between August 31, 2014 and September 1, 2015.

[13] The plaintiffs put forward no evidence of any out-of-pocket expenses which I would have been prepared to award as damages. This is probably because there were none as the breach took place three days after acceptance.

[14] Both parties agree that summary judgment is appropriate. I concur. I order that the defendant, Hyams, repudiated the agreement of purchase and sale and award damages for repudiation in the nominal amount of $1 to the plaintiffs. This is an amount suggested by the defendant, Hyams. I dismiss the balance of the plaintiffs’ claim. The plaintiffs also obtained an order for leave to issue and register a Certificate of Pending Litigation from Master Short on September 30, 2014. If the Certificate is still on title it is ordered discharged.

[15] As to costs, this matter should not have proceeded. The defendant, Hyams, was prepared to return the deposit from the date of repudiation. Accordingly the defendant is in my view entitled to costs of the action and the motion. The plaintiffs submitted a bill of costs seeking approximately $7,400 for fees, taxes and disbursements for the action and motion. The defendant on the motion acknowledged this to be a fair and reasonable amount. Exercising my discretion under s. 131 of the Courts of Justice Act and considering the factors as set out in Rule 57.01 (1), I find this to be an appropriate costs amount. Against this I deduct $800 due to the late filing of the motion materials by the defendant, contrary to a previous order of Justice C.J. Brown made on September 17, 2015, which necessitated plaintiffs’ counsel having to revise and redraft their supplementary factum at the last minute. Costs are hereby fixed in the amount of $6,600 payable by the plaintiffs to the defendant, Hyams, within 30 days of today’s date. The deposit of $30,000, along with accrued interest if any, is to be released to the plaintiffs, without any set-off for the costs award. The claim as against Re/Max Realtron Realty Inc. is dismissed without costs.

Hood J.

Date: December 2, 2015