Ko v. Hillview Homes Ltd. 2012 ABCA 245
Building Contracts - Contract - Formation - Design-built contracts
The plaintiff was a licensed realtor, and the defendant was a registered home builder. Their written agreement incorporated five documents, including: (a) a two-page printed signed form of contract to sell a house to be built, plus the lot in question, for about $1.2 million (included an “entire agreement” clause); and (b) a one-page “Addendum A”, listing some 16 extra items with prices. This lawsuit was about one of the 16 extra items, priced at $133,280. It read in full: “add 1666 x $80 ” (1666 more square feet, at $80 per square foot). The house to be built was the builder’s existing standard plan “Los Cabos II”; a house 1666 square feet bigger was about 59% bigger. The agreement did not address where the extra square footage was to be put on the Los Cabos design. No part of the agreement was ever performed. The plaintiff sued.
The Alberta Court of Queen’s Bench, in a decision not reported in this series of reports, gave the following relief: a declaration that the contract was valid and enforceable; a declaration that the defendant had unilaterally breached the contract; specific performance of only the part of the contract for sale of the lot, on payment of an unspecified price; damages (to be assessed at a second trial) “for the increased cost of construction” of the home; a declaration of a caveatable interest in the land; and damages. The defendant appealed.
The Alberta Court of Appeal allowed the appeal. The trial judge’s reasons contained error on the broad outlines of the basic principle of uncertainty. The supposed contract was invalid. There was no contract. No part of the alleged contract was left standing, given the developer’s position about not getting a lot without an approved house; a house was a vital topic for the defendant and not separable. No remedy for breach was possible. In view of the court’s conclusions, the caveat was to be discharged at once. The defendant was entitled to costs of the trial and of the appeal.