There are two parts to the moot assignment. First, you will be required to submit a written brief. One from the plaintiffs team and one from defenda

MOOT ASSIGNMENT

There are two parts to the moot assignment. First, you will be required to submit a written brief. One from the plaintiffs team and one from defendants team. The plaintiff is the party making a claim for damages and the defendant is the party arguing against any damages. The brief is to be up to 7 pages in length and will consist of a summary of the agreed facts, the issues, your arguments and conclusion. The second part will consist of the oral moot in class.

Plaintiffs: Mr. Richard Ricardo and Mrs. Dana Ricardo

Defendants: 123456 BC Ltd. and David Ko

FACTS:

In 2018, the Plaintiffs entered a written agreement to purchase Lot A from the Defendant, 123456 BC Ltd. (the developer) for $485,000. The lot was a part of a 40-lot residential development on the shores of Sooke, BC.

The Defendant, David Ko, was the sole agent and representative of 123456 BC Ltd. for all marketing and completing the development. Mr. Ko was solely responsible for managing the Sooke development. The Plaintiffs dealt with Mr. Ko exclusively. They had no dealings with the other officers of 123456 BC Ltd. The other officers of 123456 BC Ltd. were in Toronto.

There was no close date in the contract as the subdivision plan had not yet been approved. The Plaintiffs provided a cheque for 10% or $48,500 as set out in the contract. The contract provided that once subdivision was completed, the developer would give the Plaintiffs notice to complete the transaction within 10 days.

What the Plaintiffs did not know was that 123456 BC Ltd. had previously entered into a similar agreement with another couple by the name of Koskova for the same lot for $350,000. While 123456 BC Ltd. said that the prior agreement had been cancelled, the Adams (and seven others who had also signed contracts with 123456 BC Ltd for different lots) commenced a legal action against 123456 BC Ltd. in January, 2019. The Koskovas and the other seven parties were successful at trial in obtaining an order for specific performance of their agreements, ending the right of the Plaintiffs to obtain Lot A as agreed.

The Plaintiffs and Mr. Ko were acquaintances for years. They were introduced by mutual friends in 2012. They developed a friendship. In 2017, while the subdivision was being reviewed by the municipality, Mr. Ko represented to the Plaintiffs that some of the pre-sale lots were being returned to the developer including Lot A. They had discussions during the summer of 2017. Later that summer, the Plaintiffs and Mr. Ko verbally agreed on the sale and purchase of Lot A for the sum of $485,000. Mr. Ko told the about the frustrations he had with the municipality with the approval process.

The following summer the parties entered a written agreement for the sale of Lot A, reflecting the price agreed to the previous year. The Plaintiffs provided the deposit as required by the contract but omitted the year. The agreement was signed by 123456 BC Ltd. and dated August 10, 2018.

The agreement states that the closing would take place 10 days after notice to complete was provided by 123456 BC Ltd. to the Plaintiffs. The deposit cheque was never delivered by Mr. Ko to the office of 123456 BC Ltd. Mr. Ko says he advised the Ricardos of the error on the cheque. The Ricardos deny this.

The contract says that either party may cancel the contract if the subdivision is not registered by the end of 2018. Neither party exercised that option.

After receiving an oral commitment from Mr. Ko for the sale of Lot A in the summer of 2017, but before they entered into a written agreement in 2018, the Plaintiffs sold their home. They moved into the basement of Mrs. Ricardos mothers home in anticipation of building their new home on Lot A. They stayed there for four years until they found a condominium in Victoria. Their furniture remained in storage for four years.

Mr. Ko repeatedly represented that he believed the approval was imminent. The Ricardos paid a $15,000 deposit for home design plans for the construction of their home with a person Mr. Ko had recommended. They say they were told by Mr. Ko that 123456 BC Ltd. could not approve their design plans because the municipality had not approved the subdivision, even though the plan had been approved in November, 2018.

123456 BC Ltd. had difficulties getting municipal approval for the subdivision. 123456 BC Ltd. commenced litigation against the municipality over the delay. The approval did not happen until November, 2018 with registration in January, 2019.

The Plaintiffs seek damages from 123456 BC Ltd. for breach of contract.

The Plaintiffs also seek a claim for fraud against Mr. Ko because of the representations he made to them during 2019 because he said the difficulties were due to problems getting approval for the subdivision when, in fact, the delay was due to the outstanding lawsuit with the Koskovas for specific performance of Lot A. The Plaintiffs say they did not hear about the lawsuit from Mr. Ko but from their lawyer in December, 2019 and further information in January, 2020. When confronted, Mr. Ko told them to stick firm to the agreement as he expected 123456 BC Ltd. to be successful in their lawsuit. 123456 BC Ltd. lost the lawsuit in September, 2021, and the appeal denied in April, 2022.

123456 BC Ltd. claims that the agreement cannot be enforced because the deposit cheque provided by the Plaintiffs did not include a year on the date line. It also says that the contract provides that the Plaintiffs remedy is limited to the return of their deposit. Mr. Ko denies any fraud because he says he communicated the lawsuit with the Koskovas as soon as he become aware of it.

ISSUES:

Did 123456 BC Ltd. breach their contract with the Ricardos?

Is Mr. Ko liable to the Ricardos for the tort of deceit/fraud?