The Defendants brought an Application for partial Summary Judgment pursuant to Rule 7.3, seeking to dismiss the portion of the Plaintiffs’ Claim which sought specific performance.

The Plaintiffs and the Defendants had entered into an agreement with respect to an exchange of two parcels of land, and an option to purchase on a third. When the deal did not go through, the Plaintiffs sought specific performance of the transfer agreement, and placed a Caveat on the land which they claimed an interest in. Master Schlosser noted that, in order for a Caveat to be sustainable, the person claiming it must have an interest in the land. Further, in order for there to be an interest in land, the interest had to be capable of specific performance, and damages must not be an adequate remedy. In order for specific performance to be awarded, the land must be unique. A damages claim cannot support a Caveat or lis pendens.

The Court noted that the burden of establishing that the land is unique rests with the Plaintiffs. With respect to the test for Summary Judgment in the circumstances, the Court stated that “the threshold question is whether the applicant has shown that the respondent won’t win this remedy at trial” and:

To put it in terms of numbers, the court need be satisfied that there is an eighty percent chance (or thereabouts) that the plaintiffs won’t prove an entitlement to specific performance on the balance of probabilities at trial.

Master Schlosser concluded that the Defendants had met this burden and, accordingly, allowed their Application to dismiss the portion of the Claim where the Plaintiffs sought specific performance. As a consequence, the Caveat and lis pendens were also discharged.