Can a plaintiff bring an application for an order cancelling or determining the agreement for sale?
British Columbia, Canada
The following excerpt is from G.U.S. Canada Inc. v. Oliver, 1980 CanLII 734 (BC SC):
The plaintiff's application for the order cancelling or determining the agreement for sale was brought pursuant to cl. 3 of the mutual covenants contained in the agreement for sale above set out, which reads in part "in the event of default of payments of the purchase moneys or interests or any other default on the part of the purchaser—". The failure to pay taxes falls within the phrase "any other default" and the plaintiff is barred from seeking to recover these taxes by its election to cancel the agreement just as it is barred from recovering the balance of the purchase price. By its election the plaintiff is also barred from claiming the real estate commission which was paid on the re-sale of the property. The contract was at an end and the plaintiff was selling its own property. As stated by Anglin J. in Davidson v. Sharpe at p. 85: "When the purchaser under the order of the learned Chief Justice of British Columbia made default the agreement ceased to exist and the foundation for any right of personal recovery from the purchaser (except for costs) was gone."
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