Sunterra was the registered owner of land subject to a vendor’s lien registered by Shell. The vendor’s lien was for the unpaid balance of the purchase price owing on the sale of the land by Shell to Sunterra. The Court of Queen’s Bench declared that Shell had a valid vendor’s lien for the unpaid purchase price and also ruled that Shell was “entitled to proceed to apply for such further relief as it sees fit bearing in mind the relief granted”. These declarations were affirmed by the Court of Appeal. Sunterra sought leave to appeal to the Supreme Court of Canada and, by way of a Consent Order granted by O’Ferrall J.A., Shell agreed to stay enforcement of the lien in exchange for Sunterra’s consent to “further relief”. Leave to appeal to the Supreme Court was denied.

The terms of the Consent Order set out that Sunterra was to either immediately pay the total amount owing to Shell pursuant to the Court of Queen’s Bench Judgment Roll, or was to use its best efforts to expedite sale of the lands to satisfy the total amount owing under the lien. Sunterra did not immediately pay the total amount owing to Shell and agreed that the land could be listed for sale at a price that would offset the vendor’s lien. Sunterra objected to Shell’s claim that the Consent Order permitted the land to be returned to Shell if no sale was consummated, and argued that this amounted to a variation of the Consent Order. Sunterra felt that any order requiring the sale or transfer of the land to Shell if it was not sold at the listed price would be beyond the jurisdiction of the Court by virtue of Rule 9.14(a). The parties applied to Justice O’Ferrall to make a further Order to provide a remedy to the party entitled to a remedy under the original Consent Order.

O’Ferrall J.A. stated that the Consent Order could not reasonably be interpreted to mean that agreeing to a stay of enforcement of the lien meant that Shell forever gave up its right to get the land back if it could not be sold for a price that satisfied the lien. The Consent Order was to be interpreted in light of the remedies ordinarily available to the holder of an unpaid vendor’s lien. Rule 9.33(1) provided that a Plaintiff-Vendor could apply for an Order directing sale of the secured property to it. In determining whether to sell the property to the Plaintiff-Vendor, the Court was required to consider several factors, including the value of the secured property and the amount owed to the Plaintiff. Suggesting that the Consent Order did not permit Shell to insist on return of the land in the event that Sunterra failed to sell the land would “have the effect of undermining the judgment of the Court below declaring Shell’s lien valid”. O’Ferrall J.A. ordered that the property be listed for sale for one year; Sunterra was to seek approval from Shell before any offer could be accepted if it was less than what was owed to Shell; and, if the property did not sell by the end of the listing, Shell was entitled to a transfer of the property to it in full satisfaction of the amount owed under the lien.