Peter Austin Plaintiff/ defendant by counterclaim And: Darlene Dunne Defendant/ plaintiff by counterclaim, 2023 NLSC 77

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Austin v. Dunne , 2023 NLSC 77 Date : May 25, 2023 Docket : 201901G5152 Between: Peter Austin Plaintiff/ defendant by counterclaim And: Darlene Dunne Defendant/ plaintiff by counterclaim Before: Justice Vikas Khaladkar Place of Hearing: St. John’s, Newfoundland and Labrador Dates of Hearing: March 21-23, 2023

Summary: The Plaintiff claimed that he and the Defendant had purchased a house in order to fix it up and sell it for a profit. The Defendant claimed that she had purchased the property as an investment and the Plaintiff was merely a tenant and not entitled to any of the proceeds of the sale of the property. It was held that the creation of a tenancy was not the intention of the parties and that they had embarked upon a common enterprise.

Because of the Plaintiff’s actions in thwarting the sale of the property after unhappy differences had arisen between them, and because of the Defendant’s insistence that the Plaintiff had no interest in the property, costs were not awarded to either party. The proceeds of the sale were divided based upon the monetary contribution of each of the parties and on evaluation of the worth of their in kind contributions. Appearances:

Jonathan Martin Appearing on behalf of the Plaintiff/ Defendant by Counterclaim Johnathan E. Earle Appearing on behalf of the Defendant/ Plaintiff by Counterclaim Authorities Cited: CASES CONSIDERED: Scammell v. Ouston , [1941] 1 All E.R. 14 REASONS FOR JUDGMENT Khaladkar J. : INTRODUCTION [ 1 ] For ease of reference I will refer to the Plaintiff/Defendant by Counterclaim as “Austin” and the Defendant/Plaintiff by Counterclaim as “Dunne”. [ 2 ] In 2014 Austin and Dunne were dating. Austin was in the process of separating from his wife, and Dunne was already separated.

They dated and were involved in an intimate relationship but, by and large, maintained separate residences. [ 3 ] Austin was going to receive a settlement of about $100,000.00 from the sale of his previous matrimonial residence. He entered into discussions with the owner of a property located at 2 Hayes Road, in the Town of Harbour Main - Chapels Cove - Lakeview in February, 2014, with a view to buying the property. [ 4 ] Austin moved into the Hayes Road property on March 31, 2014. He had obtained a home inspection report that was produced on February 24, 2014.

He testified that he estimated the cost of repairs to the property and re-negotiated the agreement to purchase with the vendor. The re-negotiated price was $73,500.00 and, instead of purchasing 10 acres of adjoining property it was reduced to three acres. Austin indicated that he used the home inspection report as a guide for the renovations that were required. His matrimonial settlement funds were delayed and he was unable to conclude the purchase. [ 5 ] Austin was unable to obtain a mortgage because he was self-employed, could not verify his income and, therefore, could not qualify.

Dunne agreed to obtain a mortgage. The Agreement for Sale with the vendor of the property was re-drawn, with Dunne being the new, sole purchaser. [ 6 ] Dunne applied for a mortgage with her bank, the Bank of Nova Scotia (the “Bank”). [ 7 ] It was a term of the Personal Credit Agreement with the Bank, addressed to Dunne and dated May 28, 2014 as follows: 15. GIFT FOR DOWNPAYMENT We require verification of downpayment, satisfactory to us, in the amount of $14,700 by way of a signed gift letter from an immediate family member.

The gift letter must include the name, address, phone number and relationship of the donor. [ 8 ] Austin and Dunne signed a letter dated May 26, 2014, entered as exhibit PA-8 at trial, addressed to the Bank at the Town of Manuels, in the Province of Newfoundland and Labrador that stated as follows: Dear Sirs/Madams This is to confirm that a financial gift in the amount of $14,700.00 has been made to Darlene Dunne (Common Law Spouse) to assist in the purchase of a home. These funds are being provided as a gift and will never have to be repaid.

I further confirm that I am an immediate relative of Darlene Dunne (Common Law Spouse) and that no part of the financial gift is being provided by any third party having any interest, direct or indirect, in the sale or purchase of the property being mortgaged.

Sincerely, “Peter Austin” Donor Signature Peter Austin 2 Hayes Road Harbour Main NL A0A2P0 709-669-4763 Common Law Spouse “Darlene Dunne” Borrower’s Signature 1242214 (11/10) [ 9 ] Austin testified that this letter was presented to him, for the first time, at a meeting at the Bank on May 28, 2014 and it was the first time that he was made aware that the property being purchased was going to go into Dunne’s name alone, and that the down payment that he was going to provide was going to be characterized as an irrevocable gift.

He testified that his characterization as a common law spouse was a lie. [ 10 ] Austin indicated that he signed the letter under protest but, without it, there would be no mortgage funds available to purchase the property. The settlement funds from the sale of his matrimonial home had not, yet, been paid to him. [ 11 ] Dunne testified that Austin signed the letter before the meeting at the Bank at her kitchen table, and that Austin was well aware of the Bank’s requirements relating to financing. Dunne testified that Austin drafted the letter, not the Bank.

She said that she questioned Austin about their relationship being characterized as a common law relationship, and he replied that they would be living common law anyway. [ 12 ] Dunne stated that it was going to be her property. She had a bad experience with her ex-husband in relation to real property, and she did not want to repeat it. She indicated that Austin would be “renting off of me”. [ 13 ] The parties gave many diametrically opposed versions of what transpired. With respect to the issue concerning the letter for the Bank, I am satisfied that the letter of May 26, 2014 was drafted by the Bank.

I say that because it is in accord with the terms of their financing commitment but, more importantly, because of the number – 1242214 (11/10) – that appears at the bottom of the letter. It is highly unlikely that either Austin or Dunne would have inserted this number in the body of the letter. It bears the characteristics of a banking form and could not have been drafted by Austin. [ 14 ] As to whether the letter was first presented at the Bank or signed at home, there is an element of credibility assessment associated with the dissonance, but for practical purposes it doesn’t much matter.

The Bank required the document. The Bank wouldn’t have lent the money without the document being executed. The Bank wished to ensure that Dunne was making the down payment with unencumbered funds to satisfy itself that the legally required percentages of equity and debt were satisfied. [ 15 ] On the same day as the letter to the Bank, Austin presented to Dunne a draft agreement, for signature, related to the acquisition of 2 Hayes Road in Harbour Main.

It indicated, inter alia , that Austin would provide an $18,000.00 down payment for the purchase of the property and Dunne would obtain a mortgage in the amount of $72,000.00. [ 16 ] The draft agreement indicated that when the property was resold the proceeds would be applied firstly to pay out the mortgage and, secondly, would be shared in direct relation to the equity each had invested. It indicated that each would pay one-half of the mortgage payments throughout the term of the mortgage.

In the event of major disagreement the property was to be listed and sold without delay so that the proceeds could be divided in accordance with each partner’s equity position. [ 17 ] The agreement that Austin presented to Dunne was never signed by either one of them. Austin testified that Dunne told him there was no use in signing the agreement if they were unable to get mortgage financing.

Dunne testified that Austin stormed out of the house when she refused to sign the agreement that he had presented to her. [ 18 ] Austin paid a deposit of $500.00 to the vendor and $17,058.50 to the law firm that handled the sale on Dunne’s behalf. This was the entire down payment, cash balance to close and legal fees for the purchase of the property. The Bank provided $58,800.00 in mortgage financing. The property was purchased for $73,500.00. Eighty percent of the purchase price is the exact amount lent by the

Bank to Dunne. I take judicial notice of the fact that the greatest amount, in percentage terms, that a bank can lend to a borrower for a conventional, as opposed to high ratio/insured, mortgage is eighty percent. [ 19 ] Austin alleged that the property was purchased as an investment. He said that it was in substantial disrepair and needed improvements – which he was able to perform. He took the position that the parties agreed that they would contribute to the property and, when sold, they would divide the net proceeds in accordance with their relative contributions.

He took the position that his contributions of money, materials and labour should all be compensated. In addition he argued that he should receive compensation because Dunne had caused the property to be sold at a significant discount of its market value. [ 20 ] Dunne’s position was that Austin was to live in the property as a tenant, pay the mortgage and property taxes. If he did renovations to the property, they were done simply to make the property more suitable for him to live in. As far as Dunne was concerned, the house was condemned. It hadn’t been lived in for a number of years.

She indicated that she was buying the land and would make her money back from selling the land. [ 21 ] Dunne indicated that if Austin had reimbursed her by paying off the mortgage, she would have transferred the property to him. But he did not give her back her borrowed money. [ 22 ] No expert evidence was led by either party to justify the valuations that they sought, or the reasonableness of the price that was eventually obtained. [ 23 ] Similarly, no expert evidence was tendered with respect to the value of the work that was done to the property.

Dunne sought to tender evidence from a contractor in Happy Valley – Goose Bay. However, I disallowed it because the witness had never been to the property and could not have, in my opinion, given a reasonable estimate of the value of the improvements that were made by Austin. [ 24 ] Dunne acknowledged that Austin did do some renovations on the house. She acknowledged that he made some of his share of the mortgage payments, and that he paid for the property taxes and insurance. She indicated that he started to miss some of the payments, causing her problems at the Bank.

She said that she gave him a year within which to find a buyer for the house. At the end of the year he had not found a buyer, so she started to market the property herself. She indicated that Austin thwarted her attempts to sell the property. She had a buyer who was made an offer to pay $157,800.00 for the property. However, through various actions Austin scuttled the deal. [ 25 ] The fact that Dunne gave Austin a year within which to find a buyer for the house is important. It sheds light on the relationship between the parties. A landlord would have terminated the tenancy.

Why allow a tenant a year to sell the landlord’s property? I will analyze this in more detail later in the decision. [ 26 ] The parties arrived at a settlement sanctioned by this Court. However, Austin appealed the consent order to the Court of Appeal. Austin took the position that the consent order was entered into by his solicitor without his consent. [ 27 ] For some time he paid his half of the mortgage payments and the property taxes, and Dunne paid her share of the mortgage payments.

Eventually that practice disintegrated, the mortgage and taxes fell into arrears and Dunne was forced to start making all of those payments. [ 28 ] Austin and Dunne worked on the property together for some time so long as they were still dating. However, once the relationship ceased to exist, so did their joint efforts at improving the property. [ 29 ] The parties did set up a joint account from which mortgage payments were to be made.

Austin transferred $200.00 from his Credit Union account into the joint account on a monthly basis to cover his half of the mortgage payment. austin argued [ 30 ] Austin argued that the parties entered into a partnership or other type of agreement creating an interest in the real property on the terms and conditions contained in the unsigned agreement that he had drafted. [ 31 ] Austin acknowledged that Dunne provided a mortgage in the amount of $58,800.00 that was used to purchase the property. He said that he paid $26,405.00 in mortgage payments, together with municipal taxes in the amount of $2,640.10.

In addition, Austin said that he expended $19,243.67 in purchased materials to renovate the property and paid $12,808.50 to third parties to provide labour and services for necessary repairs such as the recovering of the roof. Austin also claimed that he provided 2,300 hours of his own labour in renovating the property. [ 32 ] Austin seeks damages for the sale of the property at a discounted rate by Dunne.

He said that Dunne prevented a sale of the property for $170,000.00 and Austin has, as a result, suffered damages thereby. [ 33 ] Austin seeks a declaration that a partnership existed between the parties, damages for a breach of the partnership agreement and, in the alternative, “damages in lieu of a constructive trust for unjust enrichment including but not limited to compensatory damages, disgorgement of profits, interest and costs …”. [ 34 ] Austin also claimed aggravated damages to compensate for emotional distress and suffering in the amount of $20,000.00 and punitive damages in the amount of $10,000.00. dunne argued [ 35 ] Dunne purchased the subject property from Frank Whalen for $73,500.00.

It was registered in her name only on June 30, 2014, and is mortgaged in her name only by a mortgage in the amount of $58,800.00 from the Bank. [ 36 ] Dunne said that she agreed to purchase the property as an investment, it being understood that Austin was her tenant.

[ 37 ] Dunne said that she received a gift from Austin in the amount of $14,700.00. She denied that there was a partnership agreement, and said that she refused to sign the agreement that Austin presented to her. [ 38 ] Dunne acknowledged that a joint account was set up with Austin to accommodate the bi-weekly payments of $205.42 for mortgage payments and an amount for property taxes. [ 39 ] In April, 2019 Dunne said she was advised by the Bank that the mortgage payments had fallen into arrears. She settled the arrears and has made all of the mortgage payments since that time.

Dunne said that the arrears were brought to Austin’s attention, but he failed to remedy the deficiency. [ 40 ] In May, 2019 Dunne listed the property for sale for $169,900.00. Dunne said that Austin objected to the listing of the property and attempted to obstruct purchasers from viewing the property. An offer to purchase was received in the amount of $153,900.00.

At the time the property taxes were in arrears in the amount of $1,600.00 and Dunne paid the arrears. [ 41 ] Dunne said that Austin refused to vacate the property and, as a result, the sale for $153,900.00 fell through. [ 42 ] Dunne said that on May 27, 2022 she paid the balance of the mortgage in the amount of $27,778.09. She indicated that she paid off the balance of the mortgage because she was unable to obtain insurance on the property. Dunne continued to pay the property taxes until it sold in December, 2022 for $135,000.00.

The net proceeds of the sale amount to $124,216.23 and are being held in trust pending the outcome of this litigation. [ 43 ] Dunne said that she has suffered emotional and psychological damage as a result of the actions of Austin. issues Issue 1 - Was there an agreement between the parties for the acquisition and disposition of the property? Issue 2 - What were the terms of the agreement?

And if the terms of the agreement are imprecise or impossible to ascertain, can appropriate terms be assumed by the Court? analysis Issue 1 - Was there an agreement between the parties for the acquisition and disposition of the property? [ 44 ] Austin was intent on buying a property that he could occupy, develop and sell for a profit.

He had located the property in question before the involvement of Dunne and gone so far as to make an offer to purchase it. [ 45 ] It had to have become evident to Austin that his matrimonial property settlement of $100,000.00 – which he had not yet received – would be insufficient to both acquire the property and develop it for sale. [ 46 ] I find, as a fact, that it was then that Austin and Dunne, who were then dating, determined that they would approach a lender with a view to obtaining a mortgage.

In the course of their dealings with Dunne’s banker it became apparent to the parties that Austin’s credit rating (on account of being self-employed and not having filed income tax returns for some time) would detrimentally affect their ability to get a mortgage. It is clear to me that the parties then decided that Dunne would obtain the mortgage in her name and that Austin would provide the down payment. [ 47 ] There was, however, a fly in the ointment. The Bank required that the down payment be free and clear of any encumbrance whatsoever.

It was necessary that Dunne be able to show that she had received a gift of the down payment, and that the gift was irrevocable and from a close family member. [ 48 ] As a result, the letter to the Bank of May 26, 2014 was drafted by the Bank. If the parties wanted a mortgage, Austin would have to sign the letter. I find, as a fact, that the “gift letter” did not convey a gift at all. It was executed for the purpose of obtaining a mortgage from the Bank. There was never any intention that Austin would simply give Dunne that sum of money without recompense. The parties were not then, or ever, common law spouses.

My finding is buttressed by the fact that Austin, initially, offered to buy the property from the purchaser. It was only because of the delays encountered in his matrimonial property settlement that Dunne became involved. Dunne’s insistence that the money from Austin was a gift diminishes, in my mind, her credibility. Her insistence that this was her “investment” does the same. [ 49 ] Approximately contemporaneously to the May 26, 2014 letter to the Bank, Austin drafted an agreement relating to the acquisition of the property. He presented the letter to Dunne, who did not sign it.

The agreement stated as follows: Agreement between Darlene E. Dunne and Peter J. Austin Peter Austin will provide eighteen thousand dollars ($18,000.) as a down payment, (on the 2.9 acre property at 2-26 Hayes Road, Harbour Main, NL), and as a shared investment with Darlene Dunne on the said property. Darlene Dunne will provide mortgage financing for seventy two thousand dollars, (as approved by Scotiabank, CBS, NL), to Purchase said property for the agreed upon price of $73,500, (per the signed Purchase and Sale Agreement between Frank Whelan (Vendor) and Darlene Dunne (Purchaser)).

Darlene and Peter hereby agree that if or when the property is to be resold for any reason, the proceeds are to be firstly applied to payout said mortgage, and secondly to be shared in direct relation to the equity that each has invested, up to the date of the sale. It is hereby agreed that each will provide funds for 50% of each mortgage payment throughout the term of the mortgage, (four years unless accelerated payments are made, per the mortgage contract).

It is hereby agreed that the equity positions between Peter and Darlene are to be equalized and maintained as equal positions when adequate funds become available to do so. Equity may be equalized via cash payment/s paid down on the mortgage, or by adjusting the respective mortgage payments such that one partner is paying a higher rate than the other partner.

It is hereby agreed that in the event of a major disagreement between Darlene and Peter, with respect to the property or living arrangement/s at the property, the property will be listed and sold without undue delay, so that the proceeds can be split in accordance with the partners’ equity positions at that time. This agreement signed … [emphasis in original] [ 50 ] I am convinced, on a balance of probabilities, that Dunne did not sign the agreement because she has extreme difficulty reading and writing. This was evident to me while she was on the stand and was asked, by counsel, to read a document.

Dunne tried and was unable to read the document and broke down emotionally in the attempt. It is clear to me why she would not have wanted to execute the agreement that Austin presented to her. [ 51 ] Nevertheless, I am equally convinced on a balance of probabilities that the parties did intend to enter into legal relations with one another for the acquisition, refurbishment and disposition of the property. I do not accept Dunne’s evidence that she bought the property for herself as an investment, and that Austin was merely a tenant. That position is untenable.

No landlord would set up a joint account with the tenant for the payment of mortgage payments. It would be unusual for a landlord to require the tenant to pay the property taxes. It would be even more unusual for a landlord to give a tenant the ability to make whatever modifications to the property that he saw fit without any oversight by the landlord. And, lastly, Dunne’s testimony that she gave Austin a year to sell the property is completely antithetical to her position that she was the sole owner and Austin a mere tenant. Issue 2 - What were the terms of the agreement?

And if the terms of the agreement are imprecise or impossible to ascertain, can appropriate terms be assumed by the Court? [ 52 ] Lord Wright in Scammell v. Ouston , [1941] 1 All E.R. 14 , at pages 25 and 26 s aid that there are two grounds on which a court might reach a conclusion when there is no contract . The first is that the language is so obscure and imprecise that it is incapable of being interpreted as evidencing any contractual intention. The second reason is that the parties never intended to reach an agreement.

He said: … The object of the court is to do justice between the parties, and the court will do its best, if satisfied that there was an ascertainable and determinate intention to contract , to give effect to that intention, looking at substance, and not mere form. It will not be deterred by mere difficulties of

interpretation. Difficulty is not synonymous with ambiguity, so long as any definite meaning can be extracted. The test of intention, however, is to be found in the words used. If these words, considered however broadly and technically, and with due regard to all the just implications, fail to evince any definite meaning on which the court can safely act, the court has no choice but to say that there is no contract . [ 53 ] Here, of course, the draft agreement was never signed. However, the existence of an agreement can be inferred from the actions of the parties.

Dunne testified that she was purchasing the property for the value of the land only. She indicated that the house was dilapidated and worth little or nothing. I do not think this is the case at all. While she and Austin had a continuing relationship, Dunne assisted Austin with work on the property. It was only after they drifted apart as a couple that her enthusiasm for carrying out improvements to the property waned.

This enthusiasm was resurrected, once again, after Austin stopped making mortgage and tax payments and Dunne was successful in evicting Austin from the property. [ 54 ] It is, therefore, clear to me that the parties purchased this property together with a view to fixing it up and selling it for a profit. Austin had fixed up houses for sale in the past and had some of the requisite skills. Dunne could provide some mortgage financing, allowing Austin’s $100,000.00 settlement to go a little further in the renovation of the property.

I do not believe for one moment that the entire $100,000.00 was used for the renovation – it was not. Some portion, however, was used to make the property more valuable. [ 55 ] The evidence before me is that the renovation was accomplished on a shoestring budget. Much of it was cosmetic – painting and decorating. Some doors and windows, as well as the vinyl siding, were replaced. However, all of it was replaced with second hand materials.

Even the “new” siding had, in fact, been discarded by its owner, was found by Dunne and Austin, and was repurposed for the renovation. [ 56 ] Be all that as it may, the house looked better after Austin and Dunne had invested some effort into it than it did before. [ 57 ] Austin felt, some four years later, that the property was worth over $175,000.00. He testified that he had buyers interested at that price, however, nothing materialized by way of an actual sale. By then the relationship between the parties was, perhaps, at one of its lowest ebbs.

Dunne set about finding her own purchaser and arranged to sell the property for $153,900.00. [ 58 ] Unfortunately, Austin intervened because he felt that the selling price was too low, and this caused the sale to fall through.

Ultimately Dunne was able to sell the property for $135,000.00. The loss in value of $18,900.00 is attributable solely to Austin’s actions, and I shall take that into account in my final assessment of damages in this matter. [ 59 ] I find that it was unreasonable for Austin to take the position that the property was worth over $175,000.00 and, thereafter, to become obstructive in Dunne’s attempts to dispose of the property. Similarly, I find it unreasonable for Dunne to have taken the position that Austin had no legal interest in the property.

Both positions were simply untenable. [ 60 ] The net proceeds of the sale have been held in trust, by Court Order, pending my decision. It falls upon me to sift through the evidence and find an equitable means of determining who is entitled to what. [ 61 ] Both sides have made allegations against the other, are claiming all manner of damages flowing from the ill treatment each has suffered at the hands of the other. I am not awarding aggravated, punitive or any similar type of damages to either side. As far as I am concerned each party has treated the other poorly.

Neither one should receive compensation in the form of aggravated or punitive damages. [ 62 ] Austin entered into evidence spreadsheets containing the work that he had accomplished in refurbishing the property. None of the claim for work done was substantiated by any time records kept by Austin. The amounts claimed were, by his admission, based upon the hours that he would have spent doing the work that was accomplished. It is his best guess.

Best guesses are not good enough to justify my awarding Austin $60,000.00 for labour calculated at $30/hour. [ 63 ] In the same vein, Dunne is claiming a per diem for attending at the property every other day after Austin had vacated same. She claimed that this was done in order to ensure that the property was safe and to satisfy the insurance. This claim is overkill. The safety of the property and the insurance requirements could have been satisfied by installing an alarm system at much lower cost.

Parties are expected to mitigate their losses, not inflate them. [ 64 ] So, what is reasonable under the circumstances? a. Austin’s down payment in the amount of $17,758.50 should be returned to him. b. Dunne should be reimbursed the 25 mortgage payments she made totaling approximately $5,000.00. c. Austin should be reimbursed the mortgage payments he made totaling approximately $26,405.96. d. Dunne should be reimbursed $27,778.09 that she paid to discharge the mortgage. e. Austin should be reimbursed $2,983.90 for the property taxes he paid. f.

Austin should be reimbursed $7,429.35 paid by him for insuring the property. g. Dunne should be reimbursed $2,600.00 on account of the property taxes that she paid. [ 65 ] These payments total $89,995.80, leaving a balance of $34,260.43 that will be remaining in trust from the $124,216.23 that is currently being held in trust pending the outcome of this action. [ 66 ] The behaviour of the parties leads me to the inexorable conclusion that they intended, while they were getting along, to engage in the common enterprise of fixing up this property and selling it for a profit.

I am sure that they never discussed partnerships or joint ventures in the legal sense, but I am convinced that they agreed that they would each contribute to the property, be reimbursed for their contributions, and split the proceeds. [ 67 ] The contributions of the parties that I have not yet itemized relate to the labour and materials that were expended in making the property more desirable for sale. [ 68 ] Austin was able to provide receipts in respect of $13,526.00 for materials that he purchased to refurbish the property. In addition, he expended $4,700.00 in order to have new roofing shingles installed.

These expenditures total $18,226.00 – for which he should be reimbursed. [ 69 ] I am not satisfied with Austin’s accounting for the number of hours that he might have spent in effecting the renovations. He did not keep an ongoing tally of his hours, and attempting to put a number on the hours that he might have spent on the project long after the fact does not satisfy me, on a balance of probabilities, that the amounts claimed are correct.

While I will not discount his efforts entirely, I will not accept either the number of hours that he is claiming, nor the value in terms of a price per hour that he expects to be paid.

[ 70 ] Dunne testified that she had to replace the water pump on two occasions after Austin had vacated the property. I give her a credit of $500.00 towards the supply of the water pumps. [ 71 ] Taking the foregoing into account, according to my calculations, that will leave $15,534.43 to be divided. [ 72 ] When one considers the contributions of the parties to the acquisition, renovation, marketing and sale of the property, I find that Austin’s efforts are considerably in excess of those of Dunne’s. A fair division of the remaining proceeds of the sale would give Austin 85% of the remainder and Dunne 15%.

This works out to $13,204.27 for Austin and $2,330.16 for Dunne. I am not unmindful of the fact that Austin lived in the property for a number of years. That residence is taken into account in arriving at the 85/15 split mentioned herein. [ 73 ] In total, then, Austin would receive $86,007.98 from the funds held in trust. [ 74 ] Dunne would receive the balance of $38,208.25. [ 75 ] Both parties acted despicably towards one another after their relationship ended and they drifted apart.

Dunne mischaracterized the nature of their agreement pertaining to the acquisition of the property, and wrongly attempted to maintain the position that she was the sole owner of the property and that Austin had no claim. [ 76 ] Austin took unreasonable positions concerning the value of the property. His efforts at increasing the value of the property were successful, but it was unrealistic to expect that the property would sell for over $170,000.00 and it was improper of him to stop the sales that Dunne was attempting to arrange.

Dunne was entitled to attempt to mitigate her losses by getting out of a deal that Austin was abandoning by his failure to keep up the mortgage, tax and other payments. The drop in value from Dunne’s initial attempt at sale to what it ended up becoming is due in large part to the actions taken by Austin. [ 77 ] Both parties share the blame for this investment derailing as it did. Had they continued to support one another, it is conceivable that they could have sold the property at a higher profit.

They are lucky that it was sold for more than what they paid for it. [ 78 ] For convenience sake I include the following table so that the parties will know, at a glance, the result of my decision.

Monetary Entitlement of the Parties Item Austin Dunne Total Refund of down payment 17,758.50 17,758.50 Refund of mortgage payments 26,405.96 5,000.00 31,405.96 Mortgage payout 27,778.09 27,778.09 Reimburse property taxes 2,983.90 2,600.00 5,583.90 Reimburse insurance 7,429.35 7,429.35 Verifiable materials and labour 18,226.00 18,226.00 Paid for water pumps 500.00 500.00 Parties share of remainder 13,204.27 2,330.16 15,534.43 Total 86,007.98 38,208.25 124,216.23 [ 79 ] Because of the actions of the parties and the mixed result, I decline to order costs. _____________________________ Vikas Khaladkar Justice