Peter Austin PLAINTIFF And: Darlene Dunne DEFENDANT, 2021 NLSC 128

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Dune v. Austin , 2021 NLSC 128 Date : October 8, 2021 Docket : 201901G5152 Between: Peter Austin PLAINTIFF And: Darlene Dunne DEFENDANT Before: Justice Carl R. Thompson Edited Transcript of Oral Reasons for Judgment Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: September 29, 2021 Date of Oral Judgment: September 29, 2021

Summary: Orders confirming a Consent Order to vacate a lis pendens , grant vacant possession and an additional Order to remove an upcoming postponement application from the docket were issued.

Appearances: No appearance On behalf of Peter Austin Johnathan E. Earle Appearing on behalf of Darlene Dunne Authorities Cited: CASES CONSIDERED: Tarrant v. Manufacturers Life Insurance Co. (1993), (NL SC), 113 Nfld. & P.E.I.R. 162,353 A.P.R. 162 (Nfld. S.C. (T.D.)) REASONS FOR JUDGMENT Thompson, J.: INTRODUCTION [1] This is an interlocutory application by Ms. Dunne for an Order vacating a lis pendens and granting vacant possession. BACKGROUND [2] On May 30, 2014, Ms. Dunne purchased 2 Hayes Road, Harbour Main, Newfoundland and Labrador. In purchasing theProperty, Ms. Dunne received a gift of $14,700.00 from Mr.

Austin on May 26, 2014. [3] Ms. Dunne was registered as the sole registered owner and Ms. Dunne executed a mortgage in her name with the Bank ofNova Scotia/Scotiabank for $58,800.00. [4] Mr. Austin has been living in the Property since June of 2014 and the parties had agreed that Mr. Austin would pay $205.42biweekly, plus the utilities, and money towards the property tax, in consideration of a place to stay. [5] On May 1, 2019, Ms. Dunne notified Mr. Austin of her intention to sell the Property, having listed the Property with RoyalLePage Vision Realty, on April 23, 2019, for $169,900.00.

During the listing period, Mr. Austin refused to assist in the showing of theProperty to prospective purchasers. [6] On June 5 of 2019 Ms. Dunne signed an Agreement of Purchase and Sale, agreeing to sell the Property for $153,900. Mr.Austin refused to vacate the Property. After multiple extensions, the sale of the Property was declined by the Purchaser in November of2019. [7] On August 12, 2019, Mr. Austin filed a Statement of Claim against Ms. Dunne in this matter for renovations and improvementto the property though Ms. Dunne has not been provided with supporting documentation for those costs.

On August 14, 2019 Mr. Austin filed a lis pendens against the Property bearing registration number 907677, now the subject of this application. [8] In June of 2019 Mr. Austin discontinued the payments agreed to be made by him in June 2014 in consideration of hisoccupation of the Property. Since July 2019 Ms. Dunne has incurred the cost of maintaining the mortgage, property taxes, and insuranceon the Property. Ms. Dunne currently is the legal owner of the Property but is unable to sell the asset due to the actions of Mr. Austin. Further, Ms.

Dunne has not been able to inspect the Property to determine its condition. [9] The parties attended a settlement conference on April 7, 2021 after which the parties consented to an Order. The ConsentOrder provided for the detailed process for sale of the Property and an agreed procedural process for a binding mini trial to be held onJune 8, 2021. [10] On May 6, 2021 Mr. Austin’s counsel advised that Mr. Austin intended to appeal the Consent Order. [11] On May 18, 2021 the Court of Appeal advised that Consent Order was not then stayed. Mr.

Austin continued to refuse to allowfor the Property to be viewed. [12] Since May 6, 2021 Mr. Austin has remained uncooperative and as a result of his actions, the Property cannot be listed for saleas Mr. Austin has refused to allow the Property be viewed. [13] Ms. Dunne continues to advertise the Property for sale and believes Mr. Austin may be either renting a portion of the Propertyor permitting others to reside with him on short term intervals. [14] On June 14, 2021 the appeal of the Consent Order was heard at the Court of Appeal and a decision dismissing it was rendered

on June 24, 2021. [ 15 ] Mr. Austin did not attend the binding mini trial. THE CONSENT ORDER [ 16 ] The Consent Order binding upon the parties dated April 7, 2021 and filed April 13, 2021 states as follows in full: CONSENT ORDER UPON this matter coming forward for Settlement Conference AND UPON the Counsel for all Parties advising the Court of the Parties agreement to enter into the within Consent Order, IT IS HEREBY ORDERED THAT: 1. 2-6 Hayes Road, Harbour Main-Chapel’s Cove – Lakeview (hereinafter the “Property”) shall be listed for sale 30 days from the date of this consent order. 2.

The Property will be listed for $179,000. 3. Should the Property remain unsold after 30 days, the listing price will be reduced by 2.5%. The Property will be further reduced 2.5% foreach 30 days until sold. 4. Peter Austin will upon notice from the real estate agent make the Property available for viewing within 24 hours of notice. 5. The Property will be listed for sale “as is where is” 6. The Property will be listed for sale with Andy Lewis of Royal LePage as agreed listing agent with an agent fee to be 4% plus HST. 7.

Peter Austin can stay in the Property until sold subject to him paying for the mortgage which is $205.42 every two weeks and the monthly insurance premium on the Property. 8. Darlene Dunne will accept an offer within 5% of the listed or adjusted listed price. 9. Unless specified by the purchaser, the period of escrow will not be greater than 30 days. 10. Unless specified by the purchasers’ lawyer, the Property will be sold with the survey and RPR in the vendors possession. If a new one is ordered, the cost should be shared 50/50. Purchasers lawyer to choose surveyor. 11.

Unless required, the standard legal fee for the sale will be $1075 plus HST and standard real estate disbursements. Vendor Lawyer will be Johnathan Earle of Chislett Whitten Law. 12. Lis Pendens will be released within 5 days of the date of this Consent Order. 13. Title work completed to satisfy purchasers lawyer will be following option to pay for title insurance in lieu of. 14. Any encumbrance attached to either Peter Austin or Darlene Dunne from a Sheriff Search or Department of Finance Clearance

will be incurred by that party solely. 15. All necessary disclosure is to be completed within 30 days of the date of this Consent Order. 16. The parties shall attend for a binding Mini-trial before Justice D. Boone on the 8th day of June 2021. 17. The Plaintiff shall file his brief and necessary materials on or before the 21st day of May 2021. 18. The Defendant shall file her brief on or before the 28th day of May 2021. 19.

There shall be no order as to costs. [17] I note in particular paragraph 12 respecting the disposition of the lis pendens and paragraph 7 indicating the terms upon whichthe continued occupancy of Mr. Austin in the residence would be allowed. [18] Yesterday Mr. Austin filed and had issued an interlocutory application returnable in this Court October 13, 2021 for a date tobe set for the relief sought in that application which substantially seeks to have a further postponement for a period of 90 days for him to“obtain, instruct and persuade” legal counsel. That application states at paragraphs (

i) and (ii): (

i) The Applicant is without counsel and was not consulted regarding his availability on the proposed date, which is 29 September2021 (7 business days to respond and to prepare for and appear in Court.) Additionally, the Applicant cannot attend Court on 29September 2021for personal health reasons stated in (ii) below. (ii) The Applicant is currently under medical care for emotional anguish/other, stemming from this 7-year bitter property dispute,and 25-month tortuous legal dispute which consists of perjury, unlawful financing, numerous attempts at theft (which are currentlyunderway in these Supreme Court proceedings), and repeated threats and acts against the Applicant.

The Applicant is thereby unfit torepresent himself at this time. [19] Mr. Austin, as he stated would be the case, did not appear personally or otherwise today. Apparently he seeks time to securewhat he phrases as a fair trial on the merits of the case. That application recites a procedural history and material facts, all of which onthe record appear to me now to be res judicata in view of the Consent Order affirmed as to its standing by the Court of Appeal. [20] More clearly stated than he previously had, Mr.

Austin pleads mental anguish, duress and depression which in his view isoccasioned by these proceedings and if he is not given an opportunity to proceed at a later time, an unjust and unfair trial may result. [21] Mr. Austin has not specifically asked that the matter before me today be postponed.

However, his application filed yesterdaynotes his non-appearance today and by virtue of the relief sought in that application seeking a stay, it is apparent his strategy is to havethe matter before me enlarged, effectively stayed, until the return date of October 13, 2021. [22] For the purposes of my obligation today, I will assume his poor health. However, I do not see how that could now form a basisfor him to seek trial of matters which I now have noted to be res judicata. [23] In the case of Tarrant v. Manufacturers Life Insurance Co. (1993), (NL SC), 113 Nfld. & P.E.I.R. 162, 353A.P.R. 162 (Nfld.

S.C. (T.D.)) Green, J. (as he then was) stated at paragraph 12: 12 Although the granting of a postponement is a matter within the discretion of the court (St. Lawrence (Town) v. Aylward'sLtd. (1987), (NL CA), 69 Nfld. & P.E.I.R. 111 (NFCA) per O'Neil, J.A. at pages 121-122), that discretion must beexercised in accordance with principle. An application for a postponement is in essence an application for a temporary stay ofproceedings. In Odeco Drilling of Canada Ltd. v.

Hickey's Estate and Hickey (1985), supra, Lang J. adverted to the link in principlebetween applications for postponement and applications for a stay and concluded at p. 20 that to justify a postponement of a trial, ...the applicant[s] ... must show that to continue would work an injustice because it would be oppressive or vexatious to them or an abuseof the process of the court and also that a stay will not cause an injustice to the other party to the action....

The burden is on the party seeking a postponement to show that the continuance of the action as scheduled would be unjust to that party.Usually, the fact that the other party will be deprived, if the application is granted, of its right to go to trial will in itself be regarded,without more, as an injustice to him. In such cases, the applicant will have to convince the court that the injustice to him, if he is forcedto proceed to trial, is so great as to overbalance the prejudice to the other side or that any prejudice cannot be substantially ameliorated byother means.

[ 24 ] While dealing with a postponement of trial, not an interlocutory application, Green, J. subscribed to the “right” of a party to proceed on schedule. He stated at paragraph 10: 10 The right of a party to proceed on the scheduled trial date has been described as a "substantive right", the denial of which will amount to an injustice: Odeco Drilling of Canada Ltd. et al v. Hickey's Estate and Hickey (1985), 55 Nfld. & P.E.I.R. 17 , per Lang J. at p. 20. Such a right will not be lightly interfered with.

This is also demonstrated by a general reluctance on the part of the court to accede to pre-trial applications brought in close proximity to an already-scheduled trial date where the effect would be to prejudice the viability of the trial date. See eg. Chain Stores Ltd. v. Blundon's Realty Ltd. et al (1976) 17 Nfld. & P.E.I.R. 327 . [ 25 ] In the case before me the relief requested for vacancy of a property and the lifting of a lis pendens has been outstanding for some time, at least August of 2019. [ 26 ] Ms. Dunne is the sole owner of the property in question.

The sale of the property has been impeded by concerns of Mr. Austin and his actions in support of those concerns since June of 2019 by his then refusing to vacate in the face of a sale of the property by Ms. Dunne. [ 27 ] In all, there is an effective Order of this court enforceable to require the lifting of the lis pendens and require vacant possession to occur as this application confirms that the conditions of paragraph 7 of the Order have not been met. These Orders are confirmed after appeal.

The facts giving rise to the issues between the parties have been adjudicated and the issues are now merged in the Order and unavailable for subsequent re-litigation. [ 28 ] On balance, Mr. Austin seeks a delay of proceedings. His basis for doing so has already been adjudicated. Ms. Dunne holds the benefit of an Order and seeks its enforcement where all rights of review of it are exhausted. The right of Ms. Dunne, in this case is to enforcement of a Court Order not the right to her advancement of a matter in dispute. The request of Mr.

Austin is to defer the enforcement of her right so that his concerns now facing the effective Order can be addressed. On balance, it is clear that the prejudice to Ms. Dunne in any further delay far outweighs any proposed prejudice to Mr. Austin. [ 29 ] Accordingly, I see no alternative but to confirm the Orders and approve their enforcement. The lis pendens is vacated by Order of this Court to be filed with the Court for any further necessary public registration. Mr. Austin shall vacate the premises 10 days after service of this Order with my reasons for decision which I will make available as soon as possible.

As the interlocutory application of Mr. Austin returnable October 13, 2021 is also now res judicata by this decision, I direct the Registrar to remove that matter from the docket. [ 30 ] Ms. Dunne, is entitled to costs of this application at Column III of the Scale of Costs to be paid by Mr. Austin. _____________________________ Carl R. Thompson Justice