Date Issued: November 3, 2017

File: SC-2017-002856

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Speckling v. Ens, 2017 BCCRT 104

Between:

Bernardus Speckling

Applicant

And:

Derrick Ens

Respondent

INTRODUCTION

1.         This dispute is about a failed contract to purchase a vehicle. The applicant alleges the respondent breached the contract by selling the vehicle to someone else. Both parties are self-represented. 

JURISDICTION AND PROCEDURE

2.         These are the formal written reasons of the Civil Resolution Tribunal (tribunal). The tribunal has jurisdiction over small claims brought under section 3.1 of the Civil Resolution Tribunal Act (Act). The tribunal’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the tribunal must apply principles of law and fairness, and recognize any relationships between parties to a dispute that will likely continue after the dispute resolution process has ended.

3.         The tribunal has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. I decided to hear this dispute through written submissions, because I find that there are no significant issues of credibility that cannot be resolved without an oral hearing or other reasons that might require an oral hearing.

4.         The tribunal may accept as evidence information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in a court of law. The tribunal may also ask questions of the parties and witnesses and inform itself in any other way it considers appropriate.

5.         Under tribunal rule 121, in resolving this dispute the tribunal may make one or more of the following orders:

a.     order a party to do or stop doing something;

b.     order a party to pay money;

c.      order any other terms or conditions the tribunal considers appropriate.

ISSUES

6.         The issues in this dispute are:

a.     Did the respondent breach his contract to sell the applicant a 1993 Volvo 940 (1993 Volvo)?

b.     If the respondent did breach the contract, what is the appropriate remedy?

EVIDENCE AND ANALYSIS

7.         The respondent posted a Craigslist advertisement for the sale of the 1993 Volvo for $1,199.00 on April 21, 2017.

8.         On April 22, 2017, the parties had an email exchange about the applicant’s purchase of the 1993 Volvo. The email exchange contains:

(a)    The applicant offered to purchase the 1993 Volvo for $900.00, unseen by the applicant, as long as there were no known problems with the car (email at 9.08 am). The respondent’s reply email stated that brake pads and a timing belt would need work in about 6 months but otherwise everything was good (email at 9:14 am).

(b)    The applicant responded with a few questions and noted that timing belts and fuel pumps are main issues on these cars. The applicant states that if the respondent is agreeable with the $900.00 price to provide an email address so that he could send a $500.00 deposit. The applicant further states that he will pick up and pay the balance, possibly the next day (email at 9:22 am).

(c)    The applicant then sent an email confirming an e-transfer deposit of $500.00 with the password information (email at 10:51 am).

(d)    The applicant received an email from CIBC (April 22, 2017 at 12:47 pm) stating the $500.00 was accepted by the respondent and quoting a message from the respondent “Thank you for your deposit.”

9.         After the respondent received the applicant’s deposit, the parties exchanged a series of text messages commencing around 6:44 pm on April 22, 2017. The respondent texted the applicant that the 1993 Volvo’s engine died, that it appeared to be the transmission and asked for the applicant’s email to return the $500.00 deposit right away. The applicant responded by asking to come and look at the vehicle the next day. The applicant stated the vehicle was not with him and asked again for the applicant’s email address to return the deposit. The applicant responded that there was an accepted sale price of $900.00 and restated he wanted to come and see the vehicle the next day.

10.      The respondent states he tried to refund the $500.00 deposit to the applicant. He states that another interested party responded to his Craigslist advertisement after the transmission had died on April 22, 2017. He explained the transmission problem to this third party and the third party bought the 1993 Volvo, for parts only, for $100.00 cash.  A Transfer Tax Form between the respondent and a third party indicates the 1993 Volvo was sold on April 22, 2017, for $100.00. Of note is that the Transfer Tax Form does describe the 1993 Volvo as 1994 model. The Transfer Tax Form also has a notation “needs to fix transmission.”

11.      A Kijiji advertisement dated May 4, 2017 shows a 1994 Volvo on sale for $2,900.00. It appears that this ad is for the same 1993 Volvo, just with 1994 as being the year. The Craigslist photos of the 1993 Volvo and the Kijiji ad photos of the 1994 Volvo appear very similar. The description provided in the respective ads also refers to almost identical mileage of 246,000 km, the same color and body type. The applicant states the ad was posted by the third party and that it was pulled right after he filed his claim.

12.      The applicant states because the respondent did not complete the sale of the 1993 Volvo he had to purchase another comparable Volvo, a 2001 Volvo Xc 70, advertised for sale for $2,000.00 (“2001 Volvo”). He purchased the 2001 Volvo on June 4^th 2017 for $1,200.00. The applicant provided a Craigslist advertisement for the 2001 Volvo which shows mileage of 169,000 km. He provided an Owner’s Certificate of Insurance and Vehicle License confirming he is the owner of a 2001 Volvo.  He also provided an invoice dated June 11, 2017 for $520.00 which he states he spent for immediate repairs required to the 2001 Volvo.

The Applicant’s position:

13.      The applicant submits he entered into a valid contract to purchase the 1993 Volvo for $900.00, and that this agreement was confirmed by payment of the $500.00 deposit on April 22, 2017. The applicant submits the respondent’s assertion that the 1993 Volvo’s engine died is not truthful and that the respondent received a better offer and made up a story about the car engine dying to try and get out of a binding contract. The applicant suspects that the individual who bought the 1993 Volvo for $100.00 must be acquainted with the respondent and that the same vehicle was listed for  resale on Kijiji for $2,900.00 on May 4, 2017. The applicant asserts he had to purchase a comparable vehicle for $1,200.00 and make repairs to it for $520.00.

14.      The applicant seeks a finding that there has been a breach of contract and for an order that:

(a)    the 1993 Volvo be sold to him; or

(b)   a refund of the $500.00 deposit and damages to purchase a similar car, which he states is worth, approximately, $2,900.00; and

(c)     tribunal fees of $125.00.

The Respondent’s Position

15.      The respondent acknowledges on April 22, 2017 there was a back and forth negotiation by email with the applicant for the sale of the 1993 Volvo for $900.00. He states that negotiation commenced April 21, 2017. The respondent acknowledges that on April 22, 2017 he clicked “accept” for a $500.00 deposit by e-transfer, although he was not comfortable with this method of payment. The respondent states all communication was done by email to that point and that the applicant would not give his phone number which he thought was “fishy.” The respondent states his wife, later that day, experienced a mechanical problem with the 1993 Volvo, which they managed to bring home but it was no longer in running order.  The respondent states he contacted his bank, checked an e-statement and went to the bank and confirmed receipt of the $500.00 deposit. The respondent states he explained the situation to the applicant and tried to return the deposit as he could not sell it in such condition. The respondent states another interested party responded to his advertisement later that day. Since the 1993 Volvo was no longer working and he was in need of money and had to pay debts he sold it that same day to the third party, for parts only, for $100.00 cash.

Analysis and Findings

16.      I find that a valid contract was entered into between the applicant and the respondent. The applicant and respondent had agreed to the purchase and sale of the 1993 Volvo for the sum of $900.00. Good and valid consideration in the sum of $500.00 was paid and received on April 22, 2017. The balance of the purchase price was to be paid the next day, April 23, 2017 when the applicant would pick up the car. The respondent breached the contract when he did not complete the sale of the 1993 Volvo with the applicant.

17.      I do not accept the respondent’s submission that he could not complete the sale of the 1993 Volvo as its engine had died. Other than the respondent’s own assertion, there was simply no other evidence provided in that regard.  Even if the engine had died, I find that this did not void the contract as it was not a “known problem” at the time the contract was entered between the parties.

18.      In particular, I find the respondent’s actions to sell the 1993 Volvo to another party for only $100.00, on the same day as he accepted the deposit from the applicant, to be difficult to reconcile with his assertion that he had financial debts and had no choice but to sell it for parts. Further, the applicant was willing to consider completing the sale regardless of the alleged engine failure. In fact, as already stated, given the alleged engine failure was not a known problem at the time the contract was entered into, both parties were contractually bound to complete the purchase. In any event, it would have made more sense for the respondent to continue his discussions with the applicant and complete the sale if he indeed had debts and needed the money.

19.      It is also concerning that there is a Kijiji post for a vehicle which appears to be the same 2003 Volvo for a much higher price of $2,900.00, within two weeks of the deposit being paid by the applicant. I have no evidence that the respondent posted this ad, the applicant states the third party posted it. Bearing in mind the respondent did not respond to the applicant’s allegation that the ad was for the 1993 Volvo, on a balance of probabilities I find that it was the 1993 Volvo up for re-sale.

20.      Given my conclusions above, I find that the respondent is liable for breaching his contract with the applicant.  The respondent is liable to repay the $500.00 deposit as well as any damages arising from his failure to complete the sale to the applicant. As the 1993 Volvo was sold to another person who is not a party to this dispute I find that an order for monetary damages is the appropriate remedy.

21.      The applicant requested damages in the range of $2,900.00 relying on the Kijiji ad as a comparable value.  Since the applicant was prepared to pay $900.00 for the 1993 Volvo I find that he is really asking for the difference, being $2,000.00 in damages, otherwise his claim would be a request for double recovery. However, beyond the Kijiji ad, which the applicant himself states was pulled, no other comparables for 1993 Volvos were provided. It is unknown what repairs, if any, were made to the 1993 Volvo before it was re-listed for $2,900.00, and the cost of any such repairs. The 2001 Volvo purchased by the applicant was purchased for only $1,200.00, and with repairs of $520.00, the applicant spent $1,720.00 for a seven-year newer Volvo with much less mileage. Therefore, without any other evidence on comparables I find that damages of $2,000.00 are too high. I find that the appropriate range of damages is $400.00. I come to this amount by taking into consideration what the applicant paid for the 2001 Volvo (inclusive of repairs) and what he would have paid for the 1993 Volvo, a difference of $850.00. Since the two vehicles are not direct comparables and since the applicant would have likely have spent money on repairs for the 1993 Volvo, for brakes and a timing belt, I find that an appropriate award for damages is $400.00 for the breach of contract.

ORDERS

22.      I order that:

a.     The respondent immediately reimburses the applicant his $500.00 deposit.

b.     The respondent immediately pays the applicant damages in the amount of $400.00.

23.      Under section 49 of the Act, the tribunal rules, the tribunal will generally order an unsuccessful party to reimburse a successful party for tribunal fees and reasonable dispute-related expenses. I see no reason in this case not to follow that general rule. I therefore order the respondent to also immediately reimburse the applicant for tribunal fees of $125.00. There were no dispute-related expenses claimed.

24.      Under the Court Order Interest Act (COIA), the applicant is entitled to $1.86 pre-judgment interest on the $500.00 award and $1.17 on the $400.00 award, for a total of $3.03 in pre-judgment interest. The applicant is further entitled to post-judgment interest under the COIA, as applicable.  

25.      Under section 48 of the Act, the tribunal will not provide the parties with the Order giving final effect to this decision until the time for making a notice of objection under section 56.1(2) has expired and no notice of objection has been made. The time for filing a notice of objection is 28 days after the party receives notice of the tribunals’ final decision.

26.    Under section 58.1 of the Act, a validated copy of the tribunal’s order can be enforced through the Provincial Court of British Columbia. A tribunal order can only be enforced through the Provincial Court of British Columbia. A tribunal order can only be enforced if it is an approved consent resolution order, or if, no objection has been made and the time for filing a notice of objection has passed. Once filed, a tribunal order has the same force and effect as an order of the Provincial Court of British Columbia.