Do v. Khuu Date:, 2014 BCPC 124

Citation: Do v. Khuu Date: 20140412 2014 BCPC 0124 File No: 12-42176 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: PHUONG DUY DO CLAIMANT AND: TANYA KHUU DEFENDANT REASONS FOR JUDGMENT OF HIS WORSHIP DONALD YULE Appearing on their own behalf: Phuong Duy Do Appearing in person: Tanya Khuu, and Chao Do Place of Hearing: Vancouver , B.C.

Date of Hearing: March 19, 2014 Date of Judgment: April 3, 2014 Introduction [ 1 ] The Parties owned a rental property at 2509 East Georgia Street, Vancouver, B.C. The Claimant had a 75% interest; the Defendant had a 25% interest. The property was sold in June 2012. The claim and counterclaim in this proceeding involved multiple issues relating to their joint ownership of the property. The Parties have appeared in Court on at least three separate occasions and there have also been other applications.

The matter was heard and concluded on March 19, 2014, in which a determination of each of the outstanding issues was made. Owing to the length of time the hearing took, I advised the parties that I would deliver a written judgment summarizing the outcome of the various issues. This is that judgment. Utilities [ 2 ] The Claimant advanced a claim for reimbursement of the Defendant’s 25% share of gas and electricity payments with respect to the property for the period March – June 2012. The Defendant acknowledged liability in principle but there was no agreement respecting the amount.

The gas and electricity bills were annexed to the Claimant’s Trial Statement. I found that the amount owing for gas was $59.03 and the amount owing for electricity was $90.59. The result is that the defendant owes $149.62. Insurance Refund /Bank Account [ 3 ] The Claimant admits that he owed $211.52 respecting this item. Rent from Basement Tenant [ 4 ] The Defendant as part of her Counterclaim advanced a claim for payment of $358.75 being her unpaid share of rent monies. The Claimant agreed that these monies had been owing to the Defendant but asserted that the monies had already been paid.

The Claimant asserted that the money had been paid in cash by the Claimant’s wife to the 14 year old daughter of the Defendant on the last day of school in June 2012. The Claimant alleged that the Defendant was refusing to sign documents to enable the closing of the sale of the property unless these monies were paid. A prior Subpoena issued to the Defendant’s daughter was set aside by consent on a prior occasion. The Claimant’s wife did not give evidence. The Defendant’s daughter did not give evidence. Accordingly, neither of the parties to the payment transaction gave evidence.

The Defendant denied receipt of the monies through her daughter or otherwise. I concluded that the Claimant had not satisfactorily established payment of these monies. Accordingly, the Claimant still owed $358.75 to the Defendant. Rent Deposits [ 5 ] The Claimant claims reimbursement of the Defendant’s 25% share of damage deposits that the Claimant says were returned to the three tenants of the building coincidental with the sale of the building. With respect to the upper tenant, there have been other proceedings under the Residential Tenancy Act .

The upper tenant was evicted months prior to the sale of the building. He alleged that he had been improperly evicted and was successful in obtaining an award of 2 month’s rent. In those same proceedings, the Claimant alleged that this tenant had caused damage to the rental unit. This claim was partially successful. However, a review of the decision in the other proceedings indicates that the upper tenant’s damage deposit was used to offset unpaid rent.

Accordingly, there was no return by the Claimant of the damage deposit of the upper tenant. [ 6 ] With respect to the lower tenants, the evidence was that they did not leave the premises at the time of the sale in June 2012 but remained on for approximately one year as tenants of the new building owners (the Claimant’s wife) as her tenants. There was no documentary evidence of these damage deposits being returned, nor by whom. I concluded that it was not satisfactorily established that the damage deposits were returned by the Claimant to the two lower tenants.

It was the responsibility of the Claimant in this action to prove it. Accordingly, the Claimant’s claim for reimbursement of the damage deposits was dismissed. Renovations [ 7 ] There are both claims and counter claims respecting the renovations that the parties agree were done for their mutual benefit while they owned the building. The Claimant claims for 25% of the $755.36 (namely $188.84) primarily for the purchase of a new appliance and some other incidental items. Bills for that purchase were in evidence. The Defendant agreed that she had not contributed towards that purchase.

The Claimant is therefore entitled to payment from the Defendant in the sum of $188.84. [ 8 ] In her Counterclaim the Defendant asserts that the contribution that she has already made toward these renovations, namely $2,160.00, was more than her 25% obligation. She has produced in her Trial Statement a signed one sentence letter from the contractor confirming payment by her of $2,160 for “her share”. The dispute is about the total cost of the renovations. There is in evidence what appears to be an invoice from the contractor in the total of $3,850.00.

There are also in evidence other invoice documents from the contractor. One is for $1,500.00 and another is for $500.00. The Claimant says that the renovations contract is in fact for $7,100.00 and has produced a document prepared by him showing this amount followed by various calculations of payment of deposits and ultimately showing the Defendant’s share as $1,160.25. I concluded that the contract price was established at $5,350.00. The Defendant’s 25% share ought to have been $1,337.50. She paid $2,160.00. She overpaid by $822.50. She is entitled to reimbursement from the Claimant of $822.50.

Property Management Services

[ 9 ] The Claimant claims $250.00 for the property management services he provided. The Claimant provided these services from March 2008 until February 2011. From March to December 2011 the Defendant provided those services. At no time prior to the sale of the property in June 2012 did either party seek payment from the other for this service. The Defendant’s husband, Chao Do, is the Claimant’s brother. Chao Do gave evidence that he performed various maintenance services, including grass cutting and responding to tenant complaints.

I accepted the Defendant’s evidence that the operation of this rental property was run as a family business. I concluded that there was no agreement for reimbursement between the parties of any notional sums for these respective services. Accordingly, the Claimant’s claim for this item was dismissed. Conclusion and

Summary [ 10 ] The result of these findings is that the Defendant owes the Claimant $149.62 for utilities and $188.84 for new appliance in the upper unit, making a total of $338.46. [ 11 ] The Claimant owes the Defendant $211.52 for the insurance refund, $358.75 respecting rent from the basement unit, and $822.50 because of the Defendant’s overpayment towards the cost of renovations. This makes a total $1,392.77.

These amounts are offset with the result that the Defendant will have judgment against the Claimant for the sum of $1,054.31. [ 12 ] With respect to costs, I note this has been a long drawn out affair instigated by the Claimant. In her Reply filed December 6, 2012 the Defendant admitted liability in principle for payment of the utilities. The Claimant’s claim against her respecting the renovations has varied significantly in amounts in different filed documents but at the hearing the Defendant accepted responsibility of payment of her contribution towards the appliance in the upper rental unit.

Thus in my view, although there has been mixed results, the Defendant has been substantially successful and has succeeded in her Counterclaim with respect to the renovations and with respect to the rent payment from the lower unit and has successfully defeated the claims with respect to the damage deposit and the property management services.

I accordingly award the Defendant her filing fees of $26 for the reply and $100 for the counter claim. [ 13 ] The Defendant is also awarded court ordered interest on her judgment of $1,054.31 from June 26, 2012 (completion date for the sale of the house) to the date of judgment. [ 14 ] Judgment accordingly. __________________________________ Justice of the Peace, Donald W. Yule, Q.C.