



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Bagry v. Sandhu,









2018 BCCA 14




Date: 20180111

Docket: CA43615

Between:

Ravinder Bagry,
Gursharn Bhullar, and Dalbir Thandi

Respondents

(Plaintiffs)

And

Gurjinder Sandhu
also known as Gary Sandhu

Appellant

(Defendant)






Before:



The Honourable Mr. Justice Lowry

The Honourable Mr. Justice Groberman

The Honourable Mr. Justice Fitch




On appeal from:  An
order of the Supreme Court of British Columbia,
dated March 29, 2016 (
Bagry v. Sandhu
, 2016 BCSC 536,
New Westminster Docket S144448).




Counsel for the Appellant:



M. S. Oulton and B.
  T. Duong





Respondent appearing on his own behalf:



R. Bagry





Place and Date of Hearing:



Vancouver, British
  Columbia

December 13 and 14,
  2017





Place and Date of Judgment:



Vancouver, British
  Columbia

January 11, 2018









Written Reasons by:





The Honourable Mr. Justice Lowry





Concurred in by:





The Honourable Mr. Justice Groberman

The Honourable Mr. Justice Fitch








Summary:

Appeal of an order
purporting to have been made under s. 8 of the Partition of Property Act, R.S.B.C.
1996, c. 347, entitling three of four owners of a farm property to
purchase the interest of the fourth, although the order was not based on any
undertaking to purchase being given.  Held: appeal allowed.  The order could
not be made in the absence of the required undertaking such that it was to be
set aside and the matter remitted to the trial judge.

Reasons for Judgment of the Honourable
Mr. Justice Lowry:

[1]

This appeal arises out of an order for judgment rendered after a nine-day
trial entitling three of four parties who hold equal interests in a farm
property, as tenants in common, to purchase the interest of the fourth.  It is
contended it was not open to the judge to make the order he did such that it
must be set aside.

The Judgment

[2]

In brief terms, Ravinder Bagry, Gursharn Bhullar, Dalbir Thandi, and
Gurjinder Sandhu purchased the farm.  It appears to be common ground they were
to make equal contributions to the down payment, mortgage payments, and maintenance
expenses.  The plaintiffs in the action, being Mr. Bagry, Mr. Bhullar,
and Mr. Thandi, allege the defendant, Mr. Sandhu, had not paid his
share and, by virtue of a term in what is said to have been an oral agreement,
they are entitled to have the defendants interest transferred to them.  While,
as the judge noted, that is the pleaded entitlement alleged, at trial it was
advanced as an entitlement to buy out the defendant for what he had paid.  The
plaintiffs claim, in the alternative, damages presumably amounting to what it
is said the defendant has not paid.

[3]

The defendant denies he had failed to pay any of his one-quarter share, and
counterclaims advancing a claim against Mr. Bagry alone that is unrelated
to any obligations concerning the farm and which the judge found the defendant
had no standing to make.  The defendant seeks an order under the
Partition of
Property Act
, R.S.B.C. 1996, c. 347, that the farm be sold for its
fair market value and the proceeds divided equally amongst the plaintiffs and
himself.

[4]

The judge found there to have been no agreement that the defendants
interest in the farm was to be transferred to the plaintiffs in the event he
failed to make his contributions.  He concluded his reasons by dismissing both
the plaintiffs action and the defendants counterclaim.  He did, however,
consider What should be done with the Farm?

[5]

He recognized that the defendant wants the farm sold on the open market
with the proceeds being divided equally but said that (despite the agreement
they allege) the plaintiffs were seeking to purchase the defendants interest
in the property as provided by s. 8 of the
Act
on the basis of the
appraised value of the farm contained in a report they tendered.  The judge
said the plaintiffs would be entitled to purchase the defendants interest
based on that value with any amount the defendant owed being deducted from the
sale price.  By way of explaining his reasoning, the judge said only that he
considered this the appropriate outcome.

[6]

Consistent with what the judge said, an order was entered in the
following terms:

1.      The Plaintiff[s]
claims are dismissed;

2.      The
Defendants counterclaim is dismissed;

3.      The
Plaintiffs are entitled to purchase the Defendants one-quarter interest in the
Farm based on the expert report less any monies owing;

4.      There
shall be a reference to the registrar for an accounting with respect to monies
paid towards the mortgage and expenses of the Farm.  The cost of the accounting
is a matter to be brought back before the [judge] upon completion of the
accounting as well as the questions of costs generally;

5.      The matters of costs are to be
addressed following the findings of the registrar and determination of the
court.

[7]

It is not clear on what basis the judge dismissed the plaintiffs claims
and at the same time granted them relief in the form of an order that entitles
them to purchase the defendants interest in the farm at a price (yet to be
determined) that will be discounted by the amount the defendant owes them and
for which they claimed.  The apparent inconsistency might well have justified
the parties seeking reconsideration of the judges reasons before the order was
entered.

The Appeal

[8]

The defendant appeals, advancing two grounds:

1)     It was not open to the
judge to order that the plaintiffs are entitled to purchase his interest.  This
is said to be so because they did not give an undertaking to purchase his
interest as s. 8 of the
Act
requires, such that the farm should
have been ordered sold on the open market as he claimed.

2)     It
was, in any event, an error to order the plaintiffs were entitled to purchase
his one-quarter interest based on the appraisal report they had tendered in
that it was made five months before the judgment when a current appraisal was
required.

Discussion

[9]

Under s. 1 of the
Act
, a proceeding for partition includes a
proceeding for sale and the distribution of proceeds.  Section 2 provides that
all tenants in common may be compelled to partition and sell land
as
provided in the Act
.  Section 3 provides that in a proceeding for
partition, it is sufficient to claim a sale and it is not necessary to claim a partition. 
Section 8 then provides:

(1)        In a proceeding for partition where, if this Act
had not been passed, an order for partition might have been made, then if any
party interested in the property involved requests the court to order a sale of
the property and a distribution of the proceeds instead of a division of the
property, the court may order a sale of the property and give directions.

(2)        The court may not make an order under subsection
(1) if the other parties interested in the property, or some of them, undertake
to purchase the share of a party requesting a sale.

(3)        If an undertaking is
given, the court may order a valuation of the share of the party requesting a
sale in the manner the court thinks fit, and may give directions.

[10]

Thus where, as here, a party having an interest in a property seeks an
order that the property be sold, the order may be granted unless other parties,
having an interest in the property, undertake to purchase the share of the
party seeking the sale.

[11]

The defendant maintains no undertaking, and nothing that could be said
to amount to an undertaking, to purchase his interest in the farm was at any
time given by the plaintiffs.  The plaintiffs do not accept that no undertaking
was given, although their factum is silent in this regard.

[12]

We are somewhat disadvantaged because the appeal is advanced without any
transcript of what was said at trial concerning the basis for the positions
taken that led the judge to make the order he did in this regard.  The parties
were represented at trial by counsel who do not appear on the appeal.  But that
said, the judge made no mention of any undertaking to purchase having been
given by the plaintiffs, as would have been expected.  Further, he did not
order that the plaintiffs were required to purchase the defendants interest in
the farm but rather that they were entitled to do so, which of course is
quite different.  An undertaking would have meant they were required to
purchase the defendants interest based on the appraised value; an order that
they are entitled to do so means no more than that they can purchase the
defendants interest if they wish.

[13]

Given that the order does not appear to have been based on any
undertaking given by the plaintiffs to purchase the defendants interest in the
farm, it follows that it cannot stand.

[14]

The defendant then maintains that, under s. 8(1) of the
Act
,
the farm should now be ordered sold at market value.  But it does not
necessarily follow that the judge would have exercised his discretion in favour
of requiring that it be sold.  He dismissed the defendants counterclaim in
which that relief was sought and it does not follow that, absent an undertaking
to purchase the defendants interest, engaging s. 8(2) and (3), the farm
had to be ordered sold.  It is a matter of discretion.  The judge engaged in no
discussion in that regard; there is no evidentiary record before us; and it is
not in the circumstances a consideration this Court can undertake at first
instance.  Indeed, the defendant does not advance any submission in support of
the farm being sold other than the absence of the plaintiffs undertaking to
purchase his interest.

[15]

This addresses the defendants first ground of appeal.  The second
ground would have been significant only if the defendants interest in the farm
were properly ordered sold to the plaintiffs.  The judges reasons do not
reflect any issue having been taken by the defendant with the appraised value
of the farm tendered by the plaintiffs and it is not now suggested that any
issue was raised.  However, the defendant contends that, absent a determination
that a five-month-old appraisal was satisfactory to establish the value of the
farm, he should at least have been afforded the opportunity to obtain an
appraisal of the value as of the date of judgment, even if subjected to adverse
cost consequences upon its proving to be unnecessary, citing in particular
Haigh
v. Kent
, 2016 BCSC 333.  That would appear to have been an appropriate
approach the judge might have taken had any issue about the appraisal been raised. 
No more need now be said.

[16]

It would, then, appear to follow that the order for judgment must be set
aside and the action remitted to the judge to entertain submissions and grant a
new order based on the findings of fact he has made and any further findings he
may have to make.

Disposition

[17]

I would allow the appeal and remit the matter to the judge before whom
the action was tried.

The Honourable Mr. Justice Lowry

I agree:

The Honourable Mr. Justice
Groberman

I agree:

The Honourable Mr. Justice
Fitch


