Sale of restaurant by defendant to plaintiff did not close. Sale was subject to conditions of plaintiff being satisfied with terms of existing lease and defendant was to obtain written consent of landlord to assignment of lease. Plaintiff claimed refund of deposit paid to realtor’s trust account. Defendant sought adjournment because of absence of defence counsel who was double booked. Defendant made statement of claim in Superior Court of Justice in Hamilton claiming damages of $1 million against plaintiff alleging breach of same agreement of purchase and sale. Defendant argued defendant’s counsel intended to make oral motion requesting action to be consolidated with new action. Defendants’ request for adjournment was denied. Defendant had no intention of proceeding with trial. Defendant was effectively asking to scuttle any chance of meaningful justice in proceeding. Plaintiff was granted judgment. Plaintiff was entitled to return of deposit. Condition of purchaser’s satisfaction with content of lease was not satisfied or waived and plaintiff was entitled to declare transaction null and was entitled to return of deposit. Defendant was not ready, willing and able to close transaction as scheduled because defendant’s lease was terminated prior to closing date. There was no basis for judgment against individual defendant and claim was dismissed as against individual defendant.
1604966 Ontario Ltd. v. Andsign International Management Inc. (May. 26, 2013, Ont. S.C.J., J. Sebastian Winny D.J., File No. Kitchener 1379/12) 228 A.C.W.S. (3d) 385.