5-Eleven Alberta Ltd. v. Chaudhry, 2013 ABQB 755

Court of Queen’s Bench of Alberta Citation: 5-Eleven Alberta Ltd. v. Chaudhry, 2013 ABQB 755 Date: 20131223 Docket: 0703 03837 Registry: Edmonton Between: 5-Eleven Alberta Ltd. Plaintiff - and - Saymah Chaudhry and Muhammad Hafeez, Also Known As Muhammad Hafiz Defendants _ ________________________________________ ______________ Reasons for Judgment of the Honourable Madam Justice D.L. Shelley _________________________________________ ______________ Background [ 1 ] The Plaintiff is a corporation whose principal, Mr.

Noor Chaudhry, is the father and father-in-law, respectively, of the Defendants. [ 2 ] On February 5, 2004, Ms. Saymah Chaudhry agreed to purchase property at 315 Castle Ridge Drive, Calgary (No. 315). The Defendants moved into the property in April of 2004.

[ 3 ] On or about September 10, 2004 the Plaintiff provided a $3,000.00 cheque to Ms. Chaudhry. [ 4 ] On or about June 27, 2005 the Plaintiff provided a Bill of Sale to Ms. Chaudhry, transferring a Mazda Protégé (the Mazda) for the sum of $1.00. [ 5 ] On or about August 8, 2005 Ms. Chaudhry agreed to purchase 308 Castle Ridge Drive, Calgary (No. 308). A cheque, dated two days later, was issued by the Plaintiff to Ms. Chaudhry in the amount of $4,275.00. [ 6 ] Ms. Chaudhry issued cheques, including three of them between December 2005 and February 2006 in the amount of $400.00 each, to Mr.

Chaudhry. [ 7 ] By contract dated April 15, 2006, the Defendants agreed to purchase Lot 28, Block 3, in Phase 1 of the Deer Valley development in Leduc (the Leduc Lot), and to have the Seller, Sinclair Builders, build a residence on it. On that same date the Plaintiff issued a $15,000.00 cheque to Ms. Chaudhry. On or about April 20, Ms. Chaudhry provided a bank draft to Sinclair Builders in the amount of $30,000.00. [ 8 ] On May 5, 2006 Ms. Chaudhry sent an email to her father, accompanied by a list of “deposits and debits”.

Her email indicated that this was an update showing the balance she owed. [ 9 ] On or about June 13, 2006 the Plaintiff transferred $30,000.00 to Can-Canola Inc., a corporation originally owned by Mr. Chaudhry but sold in March of 2005 to Mr. Hafeez. [ 10 ] On July 10, 2006 the Plaintiff issued a cheque in the amount of $640.00 to Pro Consulting D & Build. [ 11 ] On or about August 4, 2006 Can-Canola Inc. paid $30,000.00 to the Plaintiff. [ 12 ] On August 14, 2006 Mr. Hafeez entered into a Fas Gas Operator Agreement with Parkline Industries Limited Partnership. Two days later Mr.

Hafeez entered into an agreement to purchase a condominium in Lethbridge. [ 13 ] By letter dated August 20, 2006, Sinclair Builders requested the sum of $20,153.00, together with a draw mortgage. That letter was addressed to the Defendants but referred to Mr. Chaudhry as a “50% part owner”. [ 14 ] In September 2006, No. 315 was sold for $305,000.00. [ 15 ] Mr. Chaudhry sent emails to Ms.

Chaudhry on November 9 and December 2, 2006 advancing various claims in relation to the payments that had been made to her by the Plaintiff. [ 16 ] In March the Plaintiff issued a Statement of Claim in which it asserted that the funds that it had provided were intended to be matched by the Defendants and used to purchase and develop real estate properties. The Plaintiff claimed that it was entitled to be repaid its original contribution plus 50% of any profits realized on the sale of the properties, including the right to trace proceeds of sale when used to purchase other properties.

In addition, the Plaintiff demanded an accounting of rentals it claimed the Defendants had received. It also claimed the sum of $11,000.00 in respect of the Mazda. Issues [ 17 ] The main issues in this trail are: 1. the proper characterization of the payments made by the Plaintiff to Ms.

Chaudhry; 2. depending on such characterization, the amount of any money owed to the Plaintiff by the Defendants, or either of them; 3. depending on such characterization, whether the Plaintiff is entitled to an accounting from the Defendants in respect of any of the subject properties; 4. whether the Plaintiff is owed an additional amount in respect of the Mazda. Parties’ Positions I. Plaintiff’s Position [ 18 ] The Plaintiff submits that the payments it made to Ms. Chaudhry evidence a partnership between them in connection with the acquisition and development of real estate.

It argues that it is entitled to an accounting in respect of the revenue and expenses of the various properties, as well as a tracing of the proceeds received in relation to No. 315.

In the alternative, failing receipt of a satisfactory accounting, it seeks leave to reapply for the appointment of a Receiver to conduct an accounting. [ 19 ] In the further alternative, the Plaintiff submits that, even if a partnership is not found, based on the Defendant’s testimony that the $15,000.00 paid by the Plaintiff in respect of the Leduc Lot was a loan, judgment ought to be granted in at least that amount. [ 20 ] The Plaintiff also maintains that Ms.

Chaudhry had agreed to pay it the sum of $11,500.00 in respect of the Mazda and has failed to do so. [ 21 ] The Plaintiff submits that the case revolves around the credibility of the witnesses. It contends that Mr. Chaudhry presented in an honest manner, whereas Ms. Chaudhry was argumentative and evasive, and provided contradictory evidence.

[ 22 ] The Plaintiff also suggests that Ms. Chaudhry took advantage of an error on the Bill of Sale for the Mazda, failing to produce the Bill of Sale because the Statement of Claim referenced a different year for the vehicle than did the Bill of Sale. At the Examinations for Discovery Mr. Hafeez denied having received the vehicle from the Plaintiff. [ 23 ] Ms. Chaudhry swore an Affidavit that she had never received any money from her father toward the purchase of the Leduc Lot but admitted at trial that she received $15,000.00 from the Plaintiff. [ 24 ] In addition, the Plaintiff submits that Ms.

Chaudhry failed to produce documents that had been requested and presented documents for the first time at either the Examinations for Discovery or at trial. [ 25 ] The Plaintiff questions why Mr. Hafeez did not testify, since he was present at many of the relevant events. The Plaintiff asks me to draw negative inferences against the Defendants in connection with this failure to testify. [ 26 ] The Plaintiff submits that Ms. Chaudhry exhibited a high degree of malice towards her father, and that she engaged in “mudslinging”. By way of example, the Plaintiff points out that Ms.

Chaudhry alleged that her father was greedy, while at the same time maintaining that funds given to her by the Plaintiff were gifts from him. Similarly, she alleges that he was still angry at her for not marrying his choice of husband but the Plaintiff points out that that had occurred many years earlier. Similarly, the Plaintiff rejects Ms. Chaudhry’s suggestion that Mr.

Chaudhry was motivated to bring this action because he was angry when Naushaba’s application was refused, suggesting that he would not be angry with his daughter since she was not the one who refused the application but, rather, it was the Government of Canada that did so. The Plaintiff suggests that Ms.

Chaudhry’s real motive in denying the existence of the partnership was her anger arising from her suspicion that he was having a relationship with Naushaba while her mother was still alive. [ 27 ] The Plaintiff produced a Forensic Examination Report in relation to a Fixed Term Tenancy Agreement dated November 1, 2005, purportedly between Mr. Hafeez as Landlord and Mr. Chaudhry/5-Eleven Ltd. as Tenant. The Forensic Document Examiner who prepared the report concluded that the two signatures on page 5, which purported to be the signature of Mr.

Chaudhry, were “not the natural spontaneous signatures of Noor Chaudhry” and that “there is a high probability that the questioned partially-legible signatures on page 5 ... were not written by the person who produced the specimen signatures ..., purportedly Noor Chaudhry”. The Plaintiff submits that Ms. Chaudhry forged Mr. Chaudhry’s signature on the Tenancy Agreement so that she could give it to a mortgage company in order to obtain mortgage funding. The Plaintiff submits that Ms. Chaudhry’s explanation regarding the document made no sense and again queries why Mr.

Hafeez did not testify when he is a signatory to that document. [ 28 ] The Plaintiff also points out that Ms. Chaudhry’s May 5, 2006 list of deposits references a “Down Payment (half)”. The Plaintiff suggests that this supports its position that it was a partner in the related acquisition (the Leduc Lot). [ 29 ] In relation to the three cheques which Ms. Chaudhry maintains were repayments of a portion of the funds advanced for renovations to No. 308, Mr. Chaudhry denies these funds were for that purpose. He alleges that Ms.

Chaudhry made the notations on the cheques, referring to the basement suite or basement reno, after he negotiated the cheque. He maintains that these funds were related to the parties ongoing involvement in the “committee”, a separate investment pool that has nothing to do with this law suit. [ 30 ] The Plaintiff submits that the evidence provided by Mr. Gondal, a Project Manager with Sinclair Builders, is supportive of the Plaintiff’s position and not Ms.

Chaudhry’s. [ 31 ] The Plaintiff submits that no written contract is required and the Statute of Frauds does not apply in this case because it does not apply to partnership interests in land by virtue of s. 1 of the Partnership Act . II. Defendants’ Position [ 32 ] The Defendants take the position that it is clear that Mr. Hafeez was not a party to any agreement and should not be a Defendant in these proceedings. In support of this position they point out that all cheques and the Bill of Sale were made out to Ms. Chaudhry and that Mr.

Chaudhry testified that he was expecting to be repaid by his daughter. [ 33 ] The Defendants take exception with allegations made against them. In particular, they maintain that they did not lie or mislead in relation to the Mazda. They assert that the car was inaccurately described and therefore their response was correct. With respect to the Tenancy Agreement, Ms. Chaudhry made it clear that she believed it was her father’s signature on the Agreement, consistent with the evidence that Mr.

Chaudhry had an intention to move into one of the properties at one time. [ 34 ] The Defendants suggest there may be cultural issues at play in this case, in that Mr. Chaudhry had been angry when Ms. Chaudhry refused to marry the husband proposed by him. Ms. Chaudhry rejects the suggestion that her relationship with Mr. Chaudhry was soured as a result of her suspicions concerning the nature and duration of his relationship with Naushaba, submitting that she accepts that second marriages are part of their culture. The Defendants suggest that cultural differences also explain Mr.

Hafeez not testifying at trial, because the dispute would be viewed as a family matter between a father and daughter. [ 35 ] The Defendants submit that the evidence does not support the existence of a partnership, a joint venture or a contract. They point out that the Plaintiff argued that the Partnership Agreement was formed when “he paid the money” but that there were many payments between the Plaintiff and Ms. Chaudhry, not all of which are the subject of a claim by the Plaintiff.

In addition, the Defendants query how the provision of a lap top, printer or car could constitute payment that was to be matched by a partner or joint venturer. [ 36 ] The Defendants point out that Ms. Chaudhry paid all of the down payment and arranged for a mortgage for the balance in relation to the acquisition of No. 315. It was six months after the closing that the Plaintiff gave Ms. Chaudhry a cheque for $3,000.00. This occurred just after the birth of Ms. Chaudhry’s and Mr. Hafeez’s son. At this time Ms. Chaudhry had been discussing car seats and strollers with Mr.

Chaudhry and it was her belief that the $3,000.00 was a gift in connection with the birth of Mr. Chaudhry’s grandson.

[ 37 ] Ms. Chaudhry believed that the $4,275.00 cheque, which was directly deposited to her account, was in respect of renovations being made to accommodate Naushaba’s expected arrival in Canada. The Defendants take the position that the money was used for the renovations and to pay the fees of the Immigration consultant retained to assist in bringing her to Canada. [ 38 ] Ms. Chaudhry points out that the three $400.00 cheques which she subsequently wrote to Mr. Chaudhry referred to “basement renovations” because she hadn’t needed all of the money provided for the renovations.

She further points out that, at the time, neither the Plaintiff nor Mr. Chaudhry refused to accept it or indicated to her that it was part of an investment. [ 39 ] In relation to the purchase of the Leduc Lot, the Defendants point out that the agreement was made between the Defendants and Sinclair only; neither the Plaintiff nor Mr. Chaudhry was a party to that agreement. The Defendants submit that, if the $15,000.00 paid by the Plaintiff around that time was a loan, then Ms. Chaudhry owes him the $15,000.00.

On the other hand, if the $15,000.00 was an investment, then nothing is owing, since that transaction failed due to the actions taken by Sinclair. Further in that regard, the Defendants point out that Mr. Gondal sat with Mr. Chaudhry in the courtroom after Mr. Gondal testified. The Defendants query whether Mr. Gondal can be considered an independent witness. [ 40 ] The Defendants rely on the Statute of Frauds , arguing that, if there were any investments, they were investments in land and therefore a written contract was needed. [ 41 ] The Defendants agree that this case is all about credibility.

They question Mr. Chaudhry’s credibility. They point out that he has misrepresented his age at different times. They point out that Mr. Gondal and Mr. Chaudhry testified that the reason the Leduc Lot could not be put in Mr. Chaudhry or the Plaintiff’s name was that they could not qualify for a mortgage. Yet, a few months later Mr. Chaudhry indicated that he could qualify and indeed he obtained a mortgage in 2007 on his own home just after the purchase of the Leduc Lot by the Defendants. [ 42 ] Further in relation to Mr. Chaudhry’s credibility, the Defendants point out that the shares in 5-Eleven were kept in Mr.

Chaudhry’s children’s names until after Mrs. Chaudhry died. Mr. Chaudhry testified that one of the related documents was signed on the date indicated on the document. The document indicated it had been signed by Mrs. Chaudhry on January 15. When it was pointed out to Mr. Chaudhry that Mrs. Chaudhry had died one week earlier, Mr. Chaudhry then testified that Mrs. Chaudhry had “presigned” the document. He subsequently changed his evidence again on that point. [ 43 ] The Defendants also point out that Mr.

Chaudhry was either mistaken or lying regarding incorporation of the company, that he had misspelled names on land titles and corporate documentation, and that he had nothing in his name (either his taxi license, his home, or the shares in the company). The Defendants ask me to consider the reasons why this might be the case. In that regard, the Defendants suggest that these were intentional acts, many of which were aimed at hiding assets so that Mrs. Chaudhry could receive AISH benefits for a period of approximately 30 years prior to her death. The Defendants suggest that if Mr.

Chaudhry’s assets were held in his name, or if the full amount of his income was disclosed, Mrs. Chaudhry would not have been eligible to receive AISH benefits. [ 44 ] The Defendants point out that Mr. Chaudhry had taken steps to document the trust arrangement he had in relation to the shares in 5-Eleven, to ensure that his children would have no beneficial interest in them and would be required to divest themselves of the shares at his discretion.

This is in conflict with his assertion that the reason he had no written agreement in respect of the matters in issue of this trial is that he was dealing with his daughter and son-in-law. In addition to protecting himself in relation to the share trust arrangement, the Defendants point out that Mr. Chaudhry admitted that he had entered into written agreements with others, including Mr. Riaz Chaudhry and Sinclair Builders, in relation to other investments and loans he had made. [ 45 ] The Defendants submit that Mr. Chaudhry avoided answering questions by responding with questions.

They argue that his materials are contradictory and/or confusing, making it difficult to determine what his claims actually are. [ 46 ] The Defendants also point out that neither Mr. Chaudhry nor Ms. Chaudhry could explain much of what was contained on the lists of “deposits” and “debits”. Analysis Credibility of the Parties [ 47 ] I agree that the parties’ credibility is very much at issue in these proceedings. Mr. Chaudhry and Ms. Chaudhry have concerns regarding the credibility of each other. I share those concerns. [ 48 ] I agree that Ms. Chaudhry was argumentative when testifying. I share Mr.

Chaudhry’s concern that Mr. Hafeez did not testify, particularly in relation to the Tenancy Agreement which he signed and to which he was a contracting party. This is especially troubling in light of the forensic report and its conclusion that the signatures on the document that purport to be Mr. Chaudhry’s may not have been affixed by him. Since the forensic handwriting expert could not confirm who might have affixed the signatures, I would have expected both Ms. Chaudhry and Mr. Hafeez to testify unequivocally that neither of them had affixed Mr. Chaudhry’s signature to the document.

I did not receive that testimony. Ms. Chaudhry’s answers on cross-examination were somewhat evasive on this point and Mr. Hafeez was not available to be cross-examined about it. [ 49 ] It is a possibility that the forgery, if there was one, was done in connection with obtaining mortgage funding on the basis of a forged lease agreement. Mr. Chaudhry suggests this is the case. If he is correct, this leads to the possibility that funds were obtained by fraud. [ 50 ] I agree, as well, that the answers given by Ms. Chaudhry and Mr.

Hafeez earlier in the proceedings, prior to trial, concerning whether or not they had received a Mazda Protégé from Mr. Chaudhry were justified by them on the basis of an error in the year of the vehicle as set out on the Bill of Sale. However their answers were misleading nonetheless.

[ 51 ] However, Mr. Chaudhry’s testimony was at least as, if not more, problematic than Ms. Chaudhry’s. His explanation in relation to the trust arrangements related to the shares of 5-Eleven was not believable. I reject his testimony that he put the shares in his children’s names because he did not want the responsibility of being a shareholder. I also reject his evidence that the shares were transferred to his name within a week of his wife’s death because, coincidentally at that very time, his son no longer wished to be a trustee. It is disturbing that Mr.

Chaudhry testified that his wife executed the document at the time it was dated but then, when faced with the fact that she was already dead on that date, he changed his testimony and indicated that she had “pre-signed” the document. Even then he maintained that he had signed after her death but his wife had “witnessed” it before her death, at a time when there would have been nothing to witness. [ 52 ] The fact that assets were recorded in names that were misspelled and that assets were transferred immediately upon Mrs. Chaudhry’s death, is supportive of (although not conclusive proof of) Ms.

Chaudhry’s allegation that these were steps taken to keep assets out of Mr. Chaudhry’s name so that his wife could continue to receive AISH benefits to which she otherwise would not have been entitled. If this allegation is true, this would also constitute fraud. [ 53 ] It is clear that Mr. Chaudhry was familiar with and made a practice of documenting investments and arrangements, whether with third parties or members of his family. The trust arrangement and the documentation signed by Mr.

Chaudhry’s children in relation to the shares of 5-Eleven conflicts with his explanation as to why he did not document the alleged investments with Ms. Chaudhry. He apparently did not trust his children to hold the shares in the absence of a signed trust agreement and pre-signed relinquishment acknowledgment, yet he says he entered into investments with one of his children and her husband without obtaining similar documentary protection because he says he trusted them. [ 54 ] Similarly, Mr. Chaudhry’s explanation for not putting the Leduc Lot into his name is in conflict with the other evidence.

He said he wasn’t a party to the purchase agreement because he felt he could not qualify for the necessary mortgage financing. However, the evidence shows that he was able to obtain a mortgage on his own residence in the same time period. In addition, the evidence shows that Mr. Chaudhry was able to invest substantial amounts of money and had substantial amounts in his corporate bank account at certain points in time. While he and Ms. Chaudhry disagree on the source of those funds, the fact that he had the funds available, and entered into written agreements to invest some of them with Mr.

Riaz Chaudhry and others, conflicts with his being the unsophisticated, meager income earner he attempted to portray himself as. [ 55 ] The parties have raised the foregoing, as well as additional, concerns and made other allegations concerning the credibility of Mr. Chaudhry and Ms. Chaudhry. While none of them have been proven with certainty, surrounding circumstances and some evidence satisfies me that there is likely some merit to some of their allegations.

Since this leads to my having reservations about the credibility of each of them, I cannot conclude that, where their evidence differs, I can prefer, overall, the testimony of one to that of the other. I must then have regard to what evidence is supportive of their respective positions in relation to each of the issues, bearing in mind that the onus is on the Plaintiff to prove its position on a balance of probabilities. I turn then to the more specific issues in this action. Mr. Hafeez as a Defendant in this action [ 56 ] No cheques were made out to Mr. Hafeez, nor was the Bill of Sale for the Mazda.

No. 315 was registered solely in Ms. Chaudhry’s name. No. 308 is registered jointly in Ms. Chaudhry and Mr. Hafeez’s name. The Leduc Lot was purchased jointly by Ms. Chaudhry and Mr. Hafeez, although never transferred to them because the transaction did not proceed. However, it appears Ms. Chaudhry and Mr. Hafeez commenced an action against Sinclair Builders in respect of that aborted purchase contract. [ 57 ] I conclude it was not inappropriate to name Mr. Hafeez as a Defendant in these proceedings insofar as No. 308 and the Leduc Lot are concerned.

However, I conclude that he would have no liability in relation to No. 315 or the Mazda, regardless of whether or not liability is established in respect of those items. Characterization of payments made by the Plaintiff [ 58 ] Given Mr. Chaudhry’s history of entering into written contracts in respect of investments and trust arrangements, whether with family members or others, I cannot conclude that the $3,000.00 he paid in cash and the computer/printer he provided to Ms. Chaudhry were intended to be the first payments in a land investment partnership or joint venture.

These items were provided several months after the closing of the initial purchase of what was then Ms. Chaudhry’s and Mr. Hafeez’s matrimonial home. All of the initial funds and the mortgage financing were provided by Ms. Chaudhry. The $3,000.00 from the Plaintiff and the provision of the computer/printer by Mr. Chaudhry several months later, given the timing in relation to the birth of Mr. Chaudhry’s grandson and in the context of Mr. Chaudhry possibly going to live with them, is consistent with Ms. Chaudhry’s position that these funds were a gift to her to purchase items for her son.

As far as the computer/printer is concerned, Mr. Chaudhry did not provide any proof that either he or the Plaintiff owned the computer, what its value was, or how the provision of these items constituted part of an investment in a residential property. I conclude that the Plaintiff has not established, on a balance of probabilities, that these funds were an initial payment in a partnership or joint venture investment, nor has it established that these funds represented a loan.

Unlike the Mazda, the Plaintiff has not suggested the computer/printer were items to be paid for by either or both of the Defendants and I am satisfied that they were given to Ms. Chaudhry as she asserted. [ 59 ] The characterization of the $4,275.00 paid by the Plaintiff shortly after the Defendants purchase of No. 308 is not as clear. These funds were provided within days of Ms. Chaudhry buying the property. The notation on the cheque itself is supportive of Mr. Chaudhry’s assertion that he was paying half of the down payment in order to acquire an interest in the property.

However, in the context in which the funds were provided, it is also possible that he was providing funds in order to renovate the property in anticipation of Naushaba’s arrival, the position taken by Ms. Chaudhry. Ms. Chaudhry said she did not see this notation because the cheque was directly deposited to her account without her seeing it, just as Mr. Chaudhry asserts that the notations on the three $400.00 cheques were put on by Ms. Chaudhry after the cheques were negotiated, a position which she denies.

[ 60 ] For the same reasons as I was not persuaded that the payment of the $3,000.00 was an investment in partnership or joint venture, I am not satisfied that the Plaintiff has established, on the balance of probabilities, that the $4,275.00 was paid to acquire a ½ interest in the property. Mr. Chaudhry’s history of documenting investments and trust arrangements suggests that he would have done so in this case if that was what he was intending. However, I am not persuaded that these funds were a gift.

I accept that they were paid in order to facilitate Naushaba’s anticipated arrival and were used to pay for the immigration consultant and cost of materials for the renovations. Mr. Chaudhry and Mr. Hafeez had the benefit of that portion of the proceeds which increased the value of the property. Unfortunately, there was no evidence before me as to the amount used to pay the immigration consultant. Therefore, Ms. Chaudhry will be required to repay $4,275.00 less the $1,200.00 that I am satisfied she repaid to Mr. Chaudhry in relation to this payment. [ 61 ] Ms.

Chaudhry admitted that she received the $15,000.00 in connection with the purchase of the Leduc Lot, an admission which is consistent with the other evidence before me. As I indicated earlier, I reject Mr. Chaudhry’s assertion that he did not put his name (or the Plaintiff’

s) on the Lot (even though he (or the Plaintiff) was a ½ owner) because he could not qualify for a mortgage. The evidence conflicts with that assertion, as well as his usual practice of documenting trust arrangements and investments. Therefore, while I cannot characterize this payment as an investment in a partnership or joint venture, I am satisfied that it was a loan by the Plaintiff to Ms. Chaudhry. Amount of money owed to the Plaintiff [ 62 ] Accordingly, since all funds were advanced to Ms. Chaudhry alone, I conclude that Ms.

Chaudhry owes the Plaintiff $3,075.00 in respect of No. 308 and $15,000.00 in respect of the Leduc Lot. The Mazda [ 63 ] Mr. Chaudhry testified that he agreed to sell the Mazda to the Defendants for $11,500.00. He says they paid him a total of $500.00 and he seeks payment of the balance. The Bill of Sale, to Ms. Chaudhry alone, indicated a purchase price of $1.00, and that the $1.00 payment was payment in full for the Mazda, which would then be free of all liens and encumbrances. Mr.

Chaudhry testified that he did not want the Defendants to feel pressured by putting the real purchase price on the Bill of Sale and that was the reason it does not disclose the actual sale price. On cross-examination, Mr. Chaudhry confirmed that the Mazda had been his son’s and when his son died, Mr. Chaudhry took it from another son who had been holding it. He then put it into 5-Eleven. He could not explain why the vehicle was not dealt with in his deceased son’s estate or why it was not transferred to his son’s widow. [ 64 ] Ms.

Chaudhry testified that her father gave her the car because he did not need it and did not want to pay the insurance on it. She denies both that she agreed to pay $11,500.00 for it or that she paid him $500.00 towards the purchase price. She maintains that she did not hear anything about the alleged debt of $11,000.00 until their relationship soured and he began harassing her in 2006. She was also of the impression that the Mazda had been owned by her deceased brother. She was not sure how the car got into the name of 5- Eleven or if it was registered in the company’s name. [ 65 ] Ms.

Chaudhry’s testimony is consistent with what is written on the Bill of Sale. Given the conflicting testimony regarding its transfer, and my concerns regarding the credibility of the witnesses, I conclude the terms of the Bill of Sale should govern as there is no independent evidence confirming the purchase price of $11,500.00 or payment of a down payment of $500.00 as alleged by Mr. Chaudhry. Conclusions [ 66 ] Judgment is awarded against Ms.

Chaudhry in favour of the Plaintiff in the amount of $18,075.00, together with pre-judgment interest in accordance with the Judgment Interest Act from the date of each advance. [ 67 ] If the parties wish to speak to costs they should contact my assistant within 30 days of the date of these Reasons for Judgment in order to arrange a time at which the matter can be addressed. Heard between June 24 and June 27, 2013. Dated at the City of Edmonton, Alberta this 20 th day of December, 2013. D.L. Shelley J.C.Q.B.A.

Appearances: Dan Cavanaugh for the Plaintiff David J. Salmon for the Defendants