2008 BCSC 562 Rawlings v. Ryser

Before: The Honourable Madam Justice Dillon

Reasons for Judgment

Counsel for the Plaintiff/Respondent	P. S. Boles
Counsel for the Defendant/Applicant	T. J. Hewitt
Date and Place of Hearing:	April 22, 2008
	Vancouver, B.C.

[1] The defendant has applied for dismissal of the plaintiff’s claims under Rules 18 and 18A of the Rules of Court. The application proceeded under Rule 18A. The plaintiff submitted that the matter was not suitable for disposition under this Rule or, in the alternative, that judgment should be given for the plaintiff.

[2] The parties were in a personal relationship when property known as 11260 Paterson Road, Delta, British Columbia (the “property”) was purchased in joint tenancy in June 2005. The purchase price was $480,000 with deposit of $15,000 which was paid by the plaintiff. By February 2006, the parties’ relationship had ended.

[3] The plaintiff sought sale and partition of the property through a petition in the Supreme Court of British Columbia that was filed in March 2006. The defendant sought to set a date for the hearing of the petition and sought direction from the court when the available dates from the petitioner’s solicitor were not forthcoming. At the hearing for directions, the plaintiff advised the court that the matter was settled and the application for directions was dismissed on September 27, 2006. This petition was subsequently discontinued in October 2006.

[4] In the meantime, however, the defendant commenced her own petition for partition and sale on September 29, 2006. The petition was to be heard on December 15, 2006, but the plaintiff obtained an adjournment of six months on the grounds that the plaintiff intended to start this action to enforce an alleged agreement with respect to the property. This action was commenced on June 18, 2007. Other than issuance of a demand for discovery of documents, the plaintiff has taken no further steps in the proceeding. The defendant brought this application with the intention to reset the hearing of her petition for partition and sale following judgment in this application.

[5] Most of the evidence about an alleged agreement is based upon documentary evidence in the form of letters from counsel. Any credibility issues are minor and readily resolvable by the documents. Both parties include information obtained from counsel in their affidavits in support of their position, most supported by documents. I do not consider the hearsay nature of these references to preclude determination under this rule in these circumstances. This matter can be resolved under Rule 18A.

[6] Prior to the defendant moving out of the property, counsel for the plaintiff wrote a “without prejudice” letter to the defendant on March 24, 2006. Plaintiff’s counsel state that she was instructed to advise that “…my client is prepared at present to offer you $10,000 and removal from the mortgage obligation in consideration of the transfer of your interest and removal from title – this is not a number to start negotiations but rather is a number greater than we feel you will realize should our Petition be heard”.

[7] Prior to obtaining legal advice, the defendant replied to plaintiff’s counsel via fax on April 9, 2006 that she “…will accept [the] offer of $10,000 on the condition I…am completely removed from any further obligation concerning [the property]”.

[8] On April 30, 2006, the defendant signed a document stating that she wanted to borrow $1,000 from the plaintiff, leaving her computer with him as “collateral”. The computer system was to be returned to her upon payment of the loan. The document stated: “Repayment of this loan will be made in cash, upon receipt of the ten thousand dollar buyout to be released from mortgage and title of said property… Upon receipt of money to repay loan Ms. Ryser will receive her computer system as listed above…”. The document continued to state that the defendant could continue to use her computer “…while awaiting receipt of money from buy out to be able to repay loan…”. It was signed by both parties.

[9] On May 9, 2006, plaintiff’s counsel sent a release to the defendant with advice to seek legal counsel prior to signing. The release sought acknowledgment of the receipt of consideration and release of the plaintiff from any claims whatsoever with respect to the property. It included a certificate of independent legal advice. No consideration was tendered with the release document. No corresponding release was ever sent signed by the plaintiff.

[10] The defendant’s solicitor responded on June 29, 2006 that the defendant remained in agreement with receiving $10,000 consideration for her interest in the property but required mutual releases dealing with any and all claims between the parties. The letter continued that the only other outstanding matter between the parties was a $1,000 loan made by the plaintiff to the defendant, secured by her computer. The defendant’s counsel stated that it was the intention of the defendant to pay off the loan as soon as she received the funds from the property.

[11] On June 29, 2006, plaintiff’s counsel replied: “I enclose herewith our trust cheque for $9,000 as full and final settlement of any and all claims your client may have or has against mine arising from their relationship. These claims include but are not limited to those for maintenance, property division and debt and the like. This sum represents the $10,000 she is being paid less a loan of $1,000 which she recently made from my client”. The funds were delivered upon an undertaking not to release the funds until a comprehensive release had been signed by the defendant and property transfer documents executed. The defendant’s solicitor replied on the same day to the effect that mutual releases were required. He offered to complete the agreement if a release was forthcoming from the plaintiff and the mortgagee confirmed that she was no longer obliged, along with return of the computer in exchange for reduction of the sale price on the property. He did not accept the undertaking contained in the plaintiff’s solicitor’s letter.

[12] When no further reply was forthcoming from the plaintiff, the defendant’s solicitor returned the $9,000 trust cheque to the plaintiff’s solicitor on July 24, 2006. It was returned by plaintiff’s counsel the next day with the statement that “…we have an agreement and my client will sue on it if necessary”. On July 31, 2006, the defendant’s solicitor replied with acknowledgment that he had received the trust cheque without any undertakings set out. He reminded plaintiff’s counsel that he had not accepted the undertakings from the June 29, 2006 letter. He requested to see a copy of the “agreement” referred to and offered to keep the cheque in the file as a courtesy.

[13] Matters remained in that state until this action was commended in June 2007. On July 3, 2007, the defendant’s solicitor again returned the $9,000 trust cheque with the request not to return the cheque again.

[14] The statement of claim alleges that there was an agreement in or about April 2006 settling all claims of the defendant for an interest in the property. The plaintiff stated in his affidavits that the agreement was evidenced by the acceptance letter of April 9, 2006, the fax that accepted $10,000 upon the condition that the defendant was completely removed from any further obligation concerning the property. The April 30, 2006 document, prepared and executed by the parties without the assistance of counsel, indicates that the agreement was for $10,000 and for release from the mortgage, independent of the loan agreement. There was never an agreement obligating the defendant to sell her interest in the property for $10,000 simpliciter. The defendant attached a condition that she be released from any further obligations with respect to the property. There was never an unqualified acceptance of this term in the mirror image of the April 9, 2006 counteroffer.

[15] The defendant was never given $10,000 and was never given a release from the plaintiff. When the plaintiff’s solicitor sent a form of release on May 9, 2006 without tender of $10,000 and without a release from the plaintiff whilst seeking a release from the defendant, a new offer was made. The parties then entered into a series of negotiations to include the loan in the terms of settlement. The defendant never agreed to these terms and an agreement was never settled. The parties never reached a consensus.

[16] There was no agreement that the defendant would sell her interest in the property for $10,000. When the defendant did not execute a release as requested, the plaintiff changed the terms of the offer and included the loan in partial payment of the $10,000 buyout. This was never agreed. There is no doubt that the parties had an agreement in mind, but the terms were never crystallized.

[17] The action is dismissed with costs to the defendant on the Scale A.

“J. Dillon, J.”

_________________________________

The Honourable Madam Justice Dillon

Citation:	*Rawlings v. Ryser,*
	2008 BCSC 562