Francescutto v. Delta Hotels et al. Date:, 2014 BCPC 203

Citation: Francescutto v. Delta Hotels et al. Date: 20140902 2014 BCPC 0203 File No: 39835 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: CAESAR FRANCESCUTTO CLAIMANT AND: DELTA HOTELS NO. 48 HOLDINGS LTD. DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.D. FRAME Appearing on their own behalf: Mr. Caesar Francescutto Counsel for the Defendant: Ms. Helen Sevenoaks Place of Hearing: Kamloops , B.C. Date of Hearing: August 14, 2014 Date of Judgment: September 2, 2014

[1] This is a claim by Mr. Francescutto against Delta Hotels No. 48 Holdings Ltd. for recovery of the funds he paid for histimeshare at the Grand Hotel in Kelowna, British Columbia. [2] Mr. Francescutto and his then wife, Arlene, purchased the timeshare prepaid package lease on June 15, 1999. Mr. Francescuttosaid that he did not purchase the timeshare for his own use but for his wife. They divorced in 2005. After they divorced, Mr.Francescutto decided that he was not going to use the timeshare and tried to sell it. He had no interested buyers and simply let the matterlapse. [3] Each year, Mr.

Francescutto received a statement for the annual use fee from the Grand advising him how much he had to payfor that year’s annual use fee. Each year, Mr. Francescutto paid those expenses. [4] In August, 2008, the Defendant purchased the Grand Hotel from Royal Host and took an assignment of the leases. Mr.Francescutto did not have a full copy of the lease that he and his wife signed. He in fact had none of these documents in his possession.Nor did he approach his ex-wife to obtain a copy of them. Instead, he obtained a cover sheet from the Land Title Office setting out thebasic terms of the lease.

One of those basic terms is that he and Ms. Francescutto acknowledged that they had read and received the fulllease. They agreed to the terms of it. [5] After the Defendant purchased the Grand Hotel, it continued to issue statements for the annual use fee to Mr. Francescutto. Itdid so for several years but did not receive payment. Mr. Francescutto denies he received these statements. I do not believe Mr.Francescutto. It is clear from the documents produced at trial that he not only received the payments but attempted to negotiate out ofpaying the annual use fee because he was not using the timeshare.

I am satisfied well beyond the balance of probabilities that Mr.Francescutto received annual statements which he did not pay. [6] Further, Mr. Francescutto denied he ever received notice that the Defendant had purchased the hotel. However, Mr.Francescutto’s correspondence to the Defendant addressed the Defendant by its common name. I do not believe Mr. Francescutto. [7] After several attempts to have Mr. Francescutto pay the annual use fee, the Defendant foreclosed Mr. Francescutto’s interestfrom the lease and timeshare unit. Mr.

Francescutto expected to be repaid for the amount he paid for the lease package in 1999. It is clearfrom the lease terms that he is not entitled to compensation even if he had not been in default. However, Mr. Francescutto was clearly indefault of the annual use payments, the Defendant was entitled to take the action that it took, and Mr. Francescutto is not entitled to berepaid for the prepaid lease package. [8] Ms. Sevenoaks argued, and I agree, that a result of not paying the annual use fees is a fundamental breach of the contract goingto the root of it. This amounted to a repudiation of the contract by Mr.

Francescutto which was accepted by the Defendants. I agree withMs. Sevenoaks and find that the annual use fee went to the very heart of the contract and was a key term of the agreement. [9] Counsel referred me to the following cases on the matter of fundamental breach: Berhe v. Coblenz Holdings Ltd., 2013 BCCA512 , 2013 B.C.C.A. 512; Dillman Forest Products Ltd. v. GMAC Commercial Credit Corp., 2007 BCCA 88 , 2007B.C.C.A. 88; and Tang v. Zhang, 2013 BCCA 52 , 2013 B.C.C.A 52. [10] The Defendant did not accept the repudiation immediately. It attempted to communicate with Mr. Francescutto and reach aresolution.

It was entirely unsuccessful in doing so. Upon cancellation of the lease, the repudiation was clearly accepted by theDefendant. [11] The cover page of the prepaid vacation package lease identifies the amount paid by Mr. Francescutto as a deposit. That is cleareven on the cover sheet Mr. Francuscetto presented at trial. There was no financing and the only other payment to be made under thelease was the annual user fee. [12] There is no obligation on the part of the Defendants to buy, sell or rent Mr.

Francescutto’s interest in the timeshare, although heis entitled to do so on his own behalf during the term of the lease. [13] Pursuant to

Article 8.2 of the lease, the Defendant was entitled to re-enter and terminate the lease upon default. [14] I dismiss Mr. Francuscetto’s claim. [15] Mr. Francescutto has failed to pay the annual use fee from 2009 to 2013 in the sum of $3,243.79. Interest accrues under thelease on outstanding amounts as owing from time to time from January 1, 2009 to the date of judgment.

I note that the Defendantappropriately prorated the annual use fee for 2013 up to and including the date of termination of the lease, August 14, 2013. [16] I grant judgment to the Defendant on its counterclaim in the sum of $3,243.79, together with interest at 26.824% per annum onthe following amounts owing to the date of judgment: 2009 $618.19 2010 $649.10 2011 $715.61 2012 $751.39 2013 $509.50.

[ 17 ] The Defendant shall have its reasonable costs of the claim and counterclaim as assessed by the Registrar. ______________________ S.D. Frame Provincial Court Judge