KLEIN v SUTTER

The Plaintiffs sought Judgment against the Defendants after noting the Respondents in default. The Plaintiffs had entered into a contract with the Defendants for the sale of their home. The Respondents failed to close on the purchase and the Plaintiffs retained the Defendants’ $10,000.00 deposit. The Plaintiffs were able to sell the home shortly after for $9,900.00 more than the original purchase price.

The Court dismissed the Plaintiffs’ Application on the basis that any compensable damages experienced by the Plaintiffs were fully mitigated by the retained deposit and the increased sale price. Although the Plaintiffs were seeking Judgment in the amount of $93,190.15, the majority of the damages claimed were far too remote and were well outside the normal measure of damages.

In making the decision, Applications Judge Wanke made a point to address the Plaintiffs’ conduct with reference to Rule 3.37. This Rule allows for parties to bring Applications seeking judgment assessments on a without notice basis, but in doing so they are required to provide full, frank, and fair disclosure of all material information. In the present case, the Plaintiffs neglected to advise the Court of the fact that the Plaintiffs had been able to sell their home, and that the sale price was greater than what was contracted for with the Defendants. The Court noted that the failure to abide by this obligation resulted in a delay of the decision being rendered.