COURT FILE NO.: CV-19-00611892-0000
DATE: 2020/01/29
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
FOREST HILL HOMES (CORNELL ROUGE) LIMITED
Plaintiff
- and -
CHING KUN WANG
Defendant
Shane Greaves for the Plaintiffs
HEARD: In writing
PERELL, J.
REASONS FOR DECISION
[1] The Plaintiff, Forest Hill Homes (Cornell Rouge) Limited, is a real estate builder/developer that develops residential subdivisions and builds new residential homes. The Defendant, Ching Kun Wang, purchased a home from Forest Hill Homes, but failed to close the transaction. In this action, Forest Hill Homes sues Mr. Wang for breach of contract, and it brought a motion for summary judgment.
[2] On December 11, 2019, the summary judgment motion came on for argument, and I made the following endorsement:
In this abortive real estate case, the plaintiff moves for a summary judgment. The defendant has not filed any responding material in accordance with the timetable or at all. The defendant’s lawyer has not been able to receive instructions and is bringing a motion to get off the record. Pending that motion, the defendant’s lawyer has requested an adjournment. The adjournment was opposed by the plaintiff.
I am granting the adjournment on the following terms:
I shall remain seized of the matter.
The defendant shall have until January 20, 2020 to file and serve any responding materials.
If the defendant fails to deliver responding materials by January 20, 2020 upon being so advised by the plaintiff, I shall strike the defendant’s defence and treat the motion as a motion for a default judgment in writing.
If the defendant delivers responding materials, the plaintiff may deliver any reply material and cross-examinations, if any, are to be completed by March 1, 2020.
The motion shall be scheduled for March 16, 2020 peremptory as against the defendant.
The defendant’s lawyer shall immediately send a copy of this endorsement to the defendant and file proof of service.
The plaintiff may take out an order in accordance with this endorsement without the defendant’s approval as to form and content, and,
Costs of $2,000 to the plaintiff for the adjournment in any event of the cause.
[3] Mr. Wang did not deliver any materials by January 20, 2020. His Statement of Defence and Counterclaim is, therefore, struck.
[4] This is now an in-writing motion for a default judgment.
[5] The factual background to the default judgment is as follows.
[6] On April 17, 2017, pursuant to an Agreement of Purchase and Sale, Mr. Wang agreed to purchase a property municipally known as 301 William Foster Road, Markham, Ontario. The purchase price was $1,906,990. The closing date for the transaction was November 9, 2018.
[7] With adjustments, the amount of the purchase price was $1,937,537.72.
[8] Section 34 of the Agreement of Purchase and Sale provided that any monies not paid by the purchaser when due would accrue interest at the rate of 20% per annum, compounded monthly.
[9] Between April 2017 and August 2017, Mr. Wang paid Forest Hill Homes five deposits in the aggregate amount of $155,000. The payment of the deposits was credited to him in the Statement of Adjustments. When also accounting for an HST rebate that was credited to Mr. Wang, the balance due on closing was $1,758,537.72.
[10] In March 2018 and in July 2018, Mr. Wang advised Forest Hill Homes that he might not close the transaction on the closing date.
[11] On the closing date, Forest Hill Homes was ready, willing and able to complete the transaction, but Mr. Wang failed to close.
[12] Pursuant to an appraisal from Toivo Heinsaar of CHS Realty Advisors Inc., the true market value of the property, as at the closing date, was $1,020,000. Mr. Heinsaar is an accredited appraiser with over 20 years’ experience.
[13] Pursuant to an appraisal from Jonathan Dunlap of Cushman Wakefield, the true market value of the property, as at the closing date, was $1,075,000. Mr. Dunlap is an accredited appraiser who has appraised over $750 million worth of residential real estate in Ontario.
[14] On or about September 26, 2019, Forest Hill Homes agreed to sell the property to a new purchaser for a purchase price of $1,294,990.
[15] The closing date for the resale transaction is scheduled for May 29, 2020. Provided that the new purchasers close the resale transaction, Forest Hill Homes will have partially mitigated its damages.
[16] The difference between the balance due on closing in the transaction with Mr. Wang and the purchase price in the resale transaction is $463,547.72. Forest Hill Homes, therefore, seeks damages of $463,547.72 for the loss of the benefit of its bargain with Mr. Wang.
[17] Forest Hill Homes also seeks consequential damages of $188,843.21 for the breach of contract as follows:
a. $1,848.60 - realty taxes since the closing date;
b. $837.40 - natural gas since the closing date;
c. $334.88 - electricity since the closing date;
d. $1,378.08 - insurance premiums since the closing date;
e. $1,214.75 ($367.25 + $847.50) - cost of the appraisals;
f. $2,599.00 - realtor costs associated with the failed transaction;
g. $282.50 - realtor costs incurred on the subsequent sale of the property;
h. $22,830.11- MLS commission;
i. $542.20 - legal costs associated with the failed transaction;
j. $6,500.00- maintenance costs since the Closing Date; and
k. $149,431.90 - interest/financing costs.
[18] Forest Hill Homes total claim for damages for breach of contract is $652,390.93.
[19] Forest Hill has proven its claim for breach of contract. Damages for breach of contract should place the Plaintiff in the monetary position that it would have been in had the purchaser not breached the Agreement of Purchase and Sale.[^1] Forest Hill is also entitled to its claim for consequential damages for carrying costs, etc.[^2]
[20] I, therefore, grant Forest Hill Homes a default judgment of $652,390.93, and I dismiss the counterclaim.
[21] Forest Hill Homes may submit its claim for costs within ten days of the release of these Reasons for Decision.
Perell, J.
Released: January 29, 2020
COURT FILE NO.: CV-19-00611892-0000
DATE: 2020/01/29
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
FOREST HILL HOMES (CORNELL ROUGE) LIMITED
Plaintiff
- and -
CHING KUN WANG
Defendant
REASONS FOR DECISION
PERELL J.
Released: January 29, 2020
[^1]: Forest Hill Homes v. Ou, 2019 ONSC 4332; Degner v. Cabral, 2019 ONSC 1610; Bang v. Sebastian, 2018 ONSC 6226; Gamoff v. Hu, 2018 ONSC 2172; DHMK Properties Inc. v. 2296608 Ontario Inc., 2017 ONSC 2432; River Oaks Convenience Plaza Inc. v. Al-Qauasmi, [2009] O.J. No. 100 (S.C.J.); 642947 Ontario Ltd. v. Fleischer (2001), 2001 CanLII 8623 (ON CA), 56 O.R. (3d) 417 (C.A.); 100 Main Street East Ltd. v. W.B. Sullivan Construction Ltd. (1978), 1978 CanLII 1630 (ON CA), 20 O.R. (2d) 401 (C.A.).
[^2]: Forest Hill Homes (Cornell Rouge) Limited v. Ou, 2019 ONSC 4332; Degner v. Cabral, 2019 ONSC 1610; Bang v. Sebastian, 2018 ONSC 6226; Beatty v. Wei, 2018 ONSC 6221.