IN THE SUPREME COURT OF NOVA SCOTIA Citation: Marjan Enterprises Ltd. v. Meisner, 2003 NSSC 85 Date: 20030409 Docket: S.H. 190327 Registry: Halifax Between: Marjan Enterprises Limited, body corporate, with Head Office in Bedford, in the Halifax Regional Municipality, Province of Nova Scotia Plaintiff/Applicant v. J. Denise Meisner Defendant/Respondent Judge: The Honourable Justice C. Richard Coughlan Heard: December 11, 2002, (in Chambers) in Halifax, Nova Scotia Counsel: Deborah E. Gillis, Q. C. for the Plaintiff/Applicant Frank W. MacDonald, for the Defendant/Respondent Coughlan, J.: [1] Marjan Enterprises Limited (vendor) applies for an order pursuant to the Vendors and Purchasers Act, R.S.N.S. 1989, c. 487 for an order declaring that the objection raised by the defendant, J. Denise Meisner (purchaser), is without merit. [2] Section of the Act provides: Application for determination of question vendor or purchaser of any interest in land or his representative may, at any time and from time to time, apply in summary way to judge or local judge of the Trial Division of the Supreme Court in respect of any requisition or objection or any claim for compensation, or any other question arising out of or connected with the contract and the judge or local judge may make such order upon the application as appears just, and refer any question to referee or other officer for inquiry and report. [3] The parties entered into an agreement of purchase and sale dated October 25, 2002. The agreement provided for closing of the transaction on November 14, 2002. The agreement contains the following clause: 15. Time shall in all respects be of the essence in the Agreement. In the event of written agreement of extension, time shall continue to be of the essence. This Agreement shall enure to the benefit of and be binding upon the parties hereto, their respective heirs, executors, administrators, successors and assigns. This Agreement is to be read with all changes of gender or number required of the context. [4] The purchaser’s solicitor made an objection to title by letter dated November 8, 2002. There was communication between the solicitors for the vendor and for the purchaser. The purchaser’s solicitor did not accept the answer to the objection to title given by the vendor’s solicitor. The purchaser’s solicitor agreed to extend the closing date to November 15, 2002 by letter dated November 14, 2002. The present application was commenced November 28, 2002. [5] In dealing with when an application pursuant to the Act may be brought various texts provide as follows. In the Nova Scotia Real Property Practice Manual, Butterworths, C.W. MacIntosh, Q.C. states at p. 4-41: The application must be commenced and heard before the date for closing, which is not automatically extended by reason of the application. Any extension must be agreed to by the parties. Authority for the statement is given as Raymond and Raymond v. Doubleday and Doubleday (1984), 65 N.S.R. (2d) 179 (T.D.). [6] In Lamont on Real Estate Conveyancing (2nd ed.), Carswell, it states at p. 11-1: As stated in Chapter 10, if valid requisition is submitted and the answer does not appear satisfactory, resort can be had to vendor’s and purchaser’s application for an adjudication on the apparent title problem. Such an application for an adjudication must be commenced and heard before the closing date for the transaction in order to preserve the parties’ rights to close or not to close on the closing date. It is misconception to think that by proceeding with vendor’s and purchaser’s application that the closing date of the transaction will be automatically put over until the application is heard. The closing date will only be postponed if the parties agree. [7] In Di Castri, The Law of Vendor and Purchaser (3rd. ed.), it states at p. 13-134.1: The summary procedure, so far as the jurisdiction permits, avoids the necessity of resorting to an action for specific performance, but is available only during the pendency of the contract and not after its completion. ... The authority for the statement in Di Castri is given as Re Buhlman and London Life Ins. Co. (1932), 41 O.W.N. 17. [8] Both Raymond and Raymond v. Doubleday and Doubleday, supra and Re Buhlman and London Life Ins. Co., supra are cases where the transactions were completed and the Courts held an application pursuant to the Act is not available after the transaction is completed. Those cases are not authority that an application must be commenced and heard before the date of closing. In this case, the contract was not completed, but terminated upon the date for closing passing without extension. [9] disagree an application pursuant to the Act must be completed before the closing date. Such an interpretation is too draconian. There may be many reasons, beyond the control of an applicant, why the application cannot be heard before closing date. However, it is within the control of an applicant to commence an application before the closing date of the transaction. While an application does not have to be heard before the date of closing, it must be commenced before the date of closing. [10] Time was of the essence in the agreement. The purchaser agreed to extend the closing date to November 15, 2002. The contract ended before the application was commenced. The application was not made during the pendency of the contract. [11] The application is dismissed. [12] If the parties are unable to agree, will hear them on the issue of costs. C. Richard Coughlan, J.
The vendor's application for an order declaring that the purchaser's objection was without merit was commenced 13 days after the closing date. Application dismissed; although such an application does not have to be heard prior to the closing date, it does have to be commenced prior to that date.