Master Prowse

7.3: Summary Judgment (Application and decision)
9.32: Offer for sale of secured property

Case Summary

In a claim for breach of contract and negligence, the Plaintiff construction company applied for Summary Judgment, and the Defendant bank cross applied for Summary Dismissal. The Plaintiff had purchased a property following foreclosure proceedings that were commenced by the Defendant, who was the lender on the property. The Plaintiff argued that it did not receive the benefits of the property under the Court Order approving the sale of the property to the Plaintiff. Master Prowse noted that lenders such as the Defendant will generally commence foreclosure proceedings and will ask that the property be sold under the Court’s authority pursuant to Rule 9.32(1), which allows the Court to offer a secured property for sale at a time, place, in a manner and at a price that Court considers appropriate.

Master Prowse held that the Plaintiff’s right to obtain a real property report from the Defendant had been breached, and therefore held that the Plaintiff was entitled to Summary Judgment in the amount of $3,245. However, Master Prowse held that the Plaintiff’s remaining claims, including claims with respect to obtaining possession of the property in substantially the same condition as it was in when its offer was accepted, and to have the risk of loss or damage lie with the seller until the purchase price was paid, could not be determined because the evidence was not sufficiently clear. Master Prowse therefore concluded that the remaining claims for breaches of contract and in negligence should proceed to Trial. The Plaintiff’s Application for Summary Judgment was therefore dismissed. Master Prowse dismissed the Defendant’s Cross-Application for Summary Dismissal.

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