King v. Cleary, 2014 NLCA 33

Date: 20140930 Docket: 13/79 Citation: King v. Cleary , 2014 NLCA 33 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : BRENDA KING FIRST APPELLANT AND : WAYNE KING SECOND APPELLANT AND : JOSEPH CLEARY RESPONDENT Coram: Green C.J.N.L., Rowe and Harrington JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division (G) 200801T3543 (2013 NLTD(G) 131) Appeal Heard: May 5, 2014 Judgment Rendered: September 30, 2014 Reasons for Judgment by Rowe J.A. Concurred in by Green C.J.N.L. and Harrington J.A. Counsel for the First and Second Appellants: Joseph Twyne Counsel for the Respondent: John French

Rowe J.A.: INTRODUCTION [ 1 ] The parties are in a dispute over land. Joseph Cleary assisted Brenda and Wayne King to purchase land in Placentia. Mr. Cleary says that Brenda King agreed that, in return, Mr. Cleary would be given part of the land; Ms. King says she agreed to consider giving Mr. Cleary part of the land, but in the end decided not to. Mr. Cleary sued for the value of the land he says that he was promised. The trial judge decided in Mr. Cleary’s favour. FACTS [ 2 ] I would summarize the facts as found by the trial judge. Mr. Cleary lives on Southeast Road in Placentia.

Adjacent to his property is a large parcel of land that was being auctioned by the Town of Placentia. Mr. Cleary was interested in acquiring the portion of the parcel of land that bordered on his property; he was not interested in the whole parcel. [ 3 ] In April 2005, Mr. Cleary asked a neighbor, Ken Tobin, if he was interested in bidding on the parcel of land with him. Mr. Tobin was not, but thought his sister, Brenda King, might be. Mr. Tobin telephoned Ms. King, then living away, about Mr. Cleary and the land. Later, Mr. Cleary spoke twice on the telephone with Ms. King. [ 4 ] As to what Mr. Cleary and Ms.

King agreed to, there is some common ground. Both testified that Mr. Cleary would attend the auction on behalf of the Kings and place a bid on their behalf. Mr. Cleary did so and the Kings got the parcel of land for $6,000. [ 5 ] I will quote now from the trial judge’s reasons for decision: [8] [Ms. King and Mr. Cleary] disagree on the terms of the proposal. Cleary said he was quite clear that he wanted the portion of the property from the western boundary [abutting his property] to the beginning of the driveway [a frontage of about 150 feet].

King said they agreed only to consider his request for a building lot, and that she had no problem with considering the request, asserting that she made no commitment to any transfer, and did not agree to a specific amount of land at that time. . . . [11] In the interim, Cleary and the Kings cooperated on improvements to the land. Cleary had access to equipment to assist in digging some necessary drainage ditches and clearing a pathway useful for all-terrain vehicles. Cleary said in his testimony that all this was done because he expected that the western portion of the land would eventually be his.

The Kings asserted he was just being neighbourly, like a friendly local handyman. [ 6 ] In April 2008, the Kings wrote to Mr. Cleary. The letter reads (in part): This letter is to inform you that a tentative offer to give you a parcel of land of the west side of our property is no longer being considered. This led to a “falling out” between the Kings and Mr. Cleary. [ 7 ] In resolving the differing testimony by Mr. Cleary and Ms. King, the trial judge had regard to testimony from Kevin Tobin, Mr. Cleary’s neighbor and Ms. King’s brother. [18] Part of the evidence included the perspective of Ken Tobin.

Following the breakdown of the relationship between Cleary and King, Tobin provided a statement in the form of a letter to Cleary. In that letter, he confirmed Cleary’s perspective on the transaction. He confirmed that Cleary had contacted him, and invited him to participate in the purchase of the land. He agreed that as part of the deal, Cleary would receive the western portion of the land, with frontage of approximately 150 feet along the road.

He also said that if his sister was not interested, then he would have been. [19] Tobin also said that his understanding was that his sister agreed with the transaction as Cleary had described it. It was only in 2008, when Cleary was confronted with the refusal of King to transfer the land, that he became aware of the problem.

At that time, Cleary asked Tobin to explain in writing what had happened from his perspective, and he wrote the letter on October 28, 2008. [20] While he confirmed that he thought his sister was in agreement to transfer a parcel of land extending about 150 feet along the road, he also said there was no discussion about the depth of the land back from the road. [ 8 ] The parties agreed before trial that the value of the land in dispute is $31,500. ISSUES [ 9 ] The issues in this appeal are: (1) did the trial judge err in his finding of fact that there was an oral agreement between Mr. Cleary and Ms.

King, by which the latter promised to convey the disputed land to Mr. Cleary; and (2) if Ms. King did promise to convey the disputed land, what remedy (if any) is available to Mr. Cleary, given that the Statute of Frauds , 1677 (Eng.) makes unenforceable contracts for land that are not evidenced in writing? ANALYSIS [ 10 ] In his reasons, the trial judge reviewed the testimony of Mr. Cleary and Ms. King, the former to the effect that Ms. King had promised to convey the disputed land to him, the latter to the effect that she had merely promised to consider doing so. Mr. Cleary’s

testimony was supported by that of Ken Tobin. As well, the circumstances (notably Mr. Cleary’s attendance at the auction and his workto improve the disputed land after it was acquired by the appellants) supported Mr. Cleary’s testimony. [11] The trial judge took the foregoing into consideration in making his finding of fact that Ms. King promised to convey thedisputed land to Mr. Cleary. Counsel for the appellants called on this Court to review the evidence, find that the promise had only beento consider conveying the disputed land and then substitute that finding for the finding made by the trial judge.

But an appeal is not atrial de novo. As regards findings of fact, the standard of review is palpable and overriding error. No such error was shown by counselfor the appellants. It is not for counsel to invite this Court to read the transcript, form our own view of the facts and substitute it for thatof the trial judge. As has been stated repeatedly, that is not our role. [12] The main issue in this appeal related to remedy. It was not in dispute between the parties that the Statute of Frauds applied. The doctrine of part performance was dealt with by the trial judge, relying on Hollett v.

Hollett (1993), (NL SC), 106Nfld. & P.E.I.R. 271 (NLTD). The trial judge wrote: [48] Cleary has pleaded the doctrine of part performance to bring these circumstances outside the requirements of the Statute ofFrauds.

Justice Green in the Hollett case discusses the law of part performance beginning at paragraph 39: 39 Where the equitable doctrine of part performance is applicable, a contract involving land which is not evidenced by amemorandum in writing sufficient to satisfy the Statute may nevertheless be enforced in equity. 40 The difficult question is what acts of part performance are sufficient to take the contract outside the writing requirements of theStatute? There has not been a uniform test propounded in the cases.

The traditional test is one that requires the acts of part performanceto be "unequivocally referable" to the alleged contract: Maddison v. Alderson (1883), 8 App. Cas. 467; Deglman v. Guaranty Trust Co.of Canada, (SCC), [1954] S.C.R. 725.

A more recent, and liberal, test has now been enunciated in England in Steadman v.Steadman, [1976] A.C. 536 (H.L.), which suggests that part performance will be sufficient if, on balance, the acts in question indicatesome contract between the parties and are consistent with the oral contract alleged. 41 It is an open question as to whether the Steadman approach is the law in Canada. The three Supreme Court of Canada casesdealing with the test for part performance, namely, Deglman, supra, Brownscombe v. Alberta (Public Trustee), (SCC),[1969] S.C.R. 658, and Thompson v.

Guaranty Trust Co. of Canada, (SCC), [1974] S.C.R. 1023, all pre-date Steadmanand enunciate the "unequivocally referable" test (although, as pointed out by Professor Robertson in his Discussion Paper on the Statuteof Frauds, 1677, published by the Newfoundland Law Reform Commission (1991) at page 22, on the facts of Thompson, the court infact applied the more liberal test while enunciating the stricter one).

Professor Robertson concluded in his Discussion Paper: It is difficult to reconcile the decisions of the Supreme Court in regard to the actual test being applied for determining the sufficiency ofacts of part performance. Of course, ambiguity provides the basis on which trial and appellate courts in each province can reformulatethe proper test without disregarding the principle of stare decisis. Lower courts in other provinces have not been consistent in their acceptance of the Steadman test. In Alvi v. Lal (1990), 13 R.P.R. (2d)302, the Ontario Supreme Court refused to apply it.

On the other hand, the British Columbia Court of Appeal in Currie v. Thomas(1985), (BC CA), 3 C.P.C. (2d) 42, applied the Steadman approach but without reference to the prior Supreme Court ofCanada decisions. Likewise, in Newfoundland there are a number of recent Trial Division decisions which purport to apply Steadman:Re Patey (sub nom. Re Quieting of Titles Act (Nfld.); Maguire v. Patey) (1987), (NL SC), 66 Nfld. & P.E.I.R. 15(Russell, J.); Re Kelly (February 27, 1987, Halley, J., unreported), and Jenkins v.

Strickland (March 12, 1990, Barry, J., unreported [nowreported at (1990), 10 R.P.R. (2d) 17]). 42 In view of the recent tendency of courts in this jurisdiction to apply the more liberal Steadman approach and in the absence of apost-Steadman decision of the Supreme Court of Canada rejecting that approach, I intend to apply that approach in this case. [49] Cleary has argued that there is sufficient evidence of various acts done by him to invoke the doctrine of part performance.

Giventhe decision of the Court of Appeal in Hollett, it is suggested that I take a liberal approach to determining the effect of his actions on thefinding of a contract in respect of this land. . . . [52] The Court of Appeal has articulated the Steadman approach to the doctrine of part performance.

In the Hollett case, the Courtnoted at paragraph 40, supra, two requirements to invoke this doctrine: first, if the acts support the idea that a contract existed, andsecond, are they consistent with the oral contract which is alleged. [53] Cleary’s actions in attending at the auction, bidding, arranging for the transfer of the funds, and working on the land are morethan consistent with his version of their telephone conversation prior to the auction. There is no other logical explanation as to why hewould bid in the name of the Kings.

It defies reason that he would take this effort to bid on behalf of people almost unknown to him,unless there was some quid pro quo involved. Tobin’s testimony entirely supports Cleary’s version of the arrangement. It does notmake sense that he would make one proposal to Tobin, and then make an entirely different proposal to King. King’s assertion that sheagreed only to “consider” his proposal is not believable, in the context of the surrounding circumstances. [54] Cleary’s acts, while consistent with the existence of an agreement, do not speak to an agreement with respect to the missingdimension of the land.

He asserts an entitlement to a parcel approximately 150 feet wide by 1,560 feet in length. However the actswhich support the existence of a contract for the transfer of the land do not speak to the length of the land he claims. There is noevidence to support his claim for transfer of the western portion of the land containing the full length of the Ryan property.

As aconsequence, he is unable to rely on the doctrine of part performance to support his claim for transfer of the land he claims. [13] The foregoing analysis is clear, cogent and persuasive until paragraph 54, where (with respect) it goes “off the road into the(legal) ditch.” Logically, the description of the land relates to the terms of the contract, rather than to whether there was part

performance. The trial judge erred in denying part performance because of the “missing dimension”. [ 14 ] As well, it is clear from the evidence that the value of the property ($31,500) is a function of the frontage, rather than the depth of the property. Thus, whether the land in dispute extends back 100 feet from the road or 1,560 feet does not materially affect its value. If the remedy sought was specific performance, the absence of a fixed depth could be a problem, but it is not in this case, as the parties have agreed that the value of the land in question is $31,500.

Thus, the absence of a fixed depth is no bar to recovery. [ 15 ] Beyond this, as a matter of geometry it is necessarily implied that the disputed land have depth. Something that has only width (the road frontage) but no depth (back from the road) has no area; it is a line. To have area, it must have depth as well as width. To say, “I will convey to you land of a given width but no depth” is to make a non-sensical statement. The promise to convey land to Mr.

Cleary necessarily implies not only width (frontage) but also depth (back from the road). [ 16 ] For each of the foregoing reasons, the “missing dimension” problem raised by the judge as the basis for denying part performance falls away. Finally, there is ample evidence there was part performance of the contract, notably: Mr. Cleary’s attendance at the auction to obtain the larger parcel for the appellants and Mr. Cleary’s work to improve the disputed land after the appellants acquired the larger parcel. [ 17 ] By virtue of part performance, the contract is enforceable, notwithstanding the Statute of Frauds .

Accordingly, the Kings are liable in damages for breach of the obligation to convey the land in question to Mr. Cleary, the value of which (it was agreed by the parties) is $31,500. [ 18 ] At this juncture, I need to address a procedural issue. Mr. Cleary did not file a cross-appeal. Rule 57.09 of the Rules of the Supreme Court, 1986 , reads in part: 57.09.

(1) A respondent who wishes to cross-appeal or who intends to contend on the appeal that … (

b) the order appealed from should be affirmed on grounds other than those given by the court appealed from; … … shall, within 30 days after service of the notice of appeal on the respondent, file with the Court and serve on the appellant and any other party affected by the appeal, a notice of cross-appeal specifying the grounds thereof.

(2) Failure of a respondent to file and serve a notice of cross-appeal shall not diminish the power of the Court to deal with any matter that arises, but it may be grounds for an adjournment of the appeal or a special order as to costs. … [ 19 ] Arguably, Mr. Cleary should have filed a cross-appeal saying that he intended to rely, inter alia , on part performance, as that was not the basis on which the trial judge had granted relief. (That said, it is not clear on what basis the trial judge did award the $31,500.) [ 20 ] In applying the Rules, one should take a purposive approach. The purpose of rule 57.09(1)(

b) is to avoid appeal by “ambush”, to avoid a situation of unfairness, where a respondent “hides in the weeds” and “springs up” with arguments that the appellant did not anticipate. (This is made doubly clear by the reference in rule 57.09(2) to the potential to award costs against the respondent and to order an adjournment to allow an appellant properly to prepare.) There was no surprise here. Part performance was argued at trial and on appeal.

In any case, rule 57.09(2) makes clear that a failure to file a cross-appeal does not prevent this Court from dealing with a matter. [ 21 ] For a thorough discussion of rule 57.09, see Humby v. Newfoundland and Labrador Housing Corporation , 2013 NLCA 4 , 331 Nfld. & P.E.I.R. 190 at paras. 42-45 , per Chief Justice Green. CONCLUSION [ 22 ] The appeal is dismissed. The award of $31,500 is affirmed, albeit on different grounds. Mr. Cleary will have his costs in this Court and the Trial Division on a party and party basis, Column 3. ____________________________________ M. H. Rowe J.A.

I Concur: ___________________________________ J. D. Green C.J.N.L. I Concur: ___________________________________ M. F. Harrington J.A.