Date Issued: April 8, 2022

File: SC-2021-006700

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Larsen v. Mueller, 2022 BCCRT 400

BETWEEN:

MITCHELL ERIC LARSEN and SHELLEY MAY LARSEN

 

APPLICANTS

AND:

KATHERINE MUELLER

 

RESPONDENT

AND:

MITCHELL ERIC LARSEN

 

RESPONDENT BY COUNTERCLAIM

 

 

REASONS FOR DECISION
Tribunal Member:	Andrea Ritchie, Vice Chair

 

INTRODUCTION

1.      This dispute is about the purchase and sale of cabinetry and countertops.

2.      The applicants, Mitchell Eric Larsen and Shelley May Larsen, paid a $3,000 deposit towards kitchen cabinetry and countertops being sold for a total of $6,000 by the respondent (and applicant by counterclaim), Katherine Mueller. The Larsens say the granite countertops they purchased were destroyed during Mrs. Mueller’s removal of them from her property, so they say Mrs. Mueller breached their agreement and ask for the refund of their $3,000 deposit.

3.      Mrs. Mueller admits the countertops were destroyed, but says they were merely an addition to the real product being sold, the cabinets. She says the Larsens should have followed through on the agreement and picked up the cabinets and paid the $3,000 balance. Mrs. Mueller says after the Larsens backed out of the deal, she had to sell the cabinets at a discounted price of $2,500. She counterclaims against Mr. Larsen for $500, the difference between the parties’ initial agreed sale price and the money paid to Mrs. Mueller by the new purchaser plus the Larsens’ deposit.

4.      The parties are all self-represented.

JURISDICTION AND PROCEDURE

5.      These are the formal written reasons of the Civil Resolution Tribunal (CRT). The CRT has jurisdiction over small claims brought under section 118 of the Civil Resolution Tribunal Act (CRTA). Section 2 of the CRTA states that the CRT’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the CRT 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.

 

6.      Section 39 of the CRTA says that the CRT has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. Here, I find that I am properly able to assess and weigh the documentary evidence and submissions before me. Further, bearing in mind the CRT’s mandate that includes proportionality and a speedy resolution of disputes, I find that an oral hearing is not necessary.

7.      Section 42 of the CRTA says that the CRT 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 CRT may also ask questions of the parties and witnesses and inform itself in any other way it considers appropriate.

8.      In resolving this dispute the CRT may make one or more of the following orders, where permitted by section 118 of the CRTA:

a.    Order a party to do or stop doing something,

b.    Order a party to pay money, or

c.    Order any other terms or conditions the CRT considers appropriate.

ISSUES

9.      The issues in this dispute are:

a.    Are the Larsens entitled to a refund of their $3,000 deposit?

b.    Is Mrs. Mueller entitled to $500 for the alleged reduced sale price of the cabinets?

EVIDENCE AND ANALYSIS

10.   In a civil claim such as this, the Larsens must prove their claim on a balance of probabilities (meaning “more likely than not”). Mrs. Mueller has this same burden to prove her counterclaim. While I have read all of the parties’ evidence and submissions, I have only addressed the evidence and arguments to the extent necessary to explain my decision.

11.   Most of the facts in these claims are undisputed. On June 19, 2021, Mrs. Mueller advertised an “Entire Kitchen for sale – solid wood doors, granite counters, plus fixtures” for $6,000. The ad stated the cabinets and countertops would be available in mid to late July, and the price specifically included “cabinets, countertops, sinks, faucets”. The ad further noted Mrs. Mueller’s contractor would be removing the items, but she could not guarantee that “no damage” would occur during removal.

12.   Mr. Larsen went to view the kitchen, and on June 28, 2021, the Larsens paid a $3,000 deposit towards the kitchen, with the balance to be paid upon pick-up. On July 23, 2021 Mrs. Mueller advised the cabinetry and countertops would be removed on July 26. On July 26, 2021, Mrs. Mueller messaged Mrs. Larsen to advise sections of the granite countertop may be damaged during removal, so to confirm whether the Larsens were intending to keep them or if the contractor could “trash” them. Mrs. Larsen responded that they were intending to keep the countertops, and would not have agreed to pay $6,000 if they were not included. Mrs. Mueller agreed to ask her contractor to be extra cautious with removal, but on July 29, 2021 she advised Mrs. Larsen that the granite countertops had been damaged during removal. The Larsens asked to come take a look at the cabinets and countertops, and after doing so discovered the countertops had not only been damaged, but also thrown away.

13.   Mrs. Mueller offered a $500 discount, but the Larsens advised on August 1, 2021 that they had intended to purchase the “entire kitchen” as advertised, and without the granite countertops they wanted their $3,000 deposit back. In response, on August 2, 2021, Mrs. Mueller advised the deposit was non-refundable, but said she would sell the cabinetry for $4,800. The Larsens rejected that offer.

14.   Mrs. Mueller went on to sell the cabinetry to another buyer for $2,500.

 

15.   So, are the Larsens entitled to a refund of their $3,000 deposit?

16.   Although Mrs. Mueller argues the main product in her advertisement for sale was the cabinetry and the countertops were merely an add-on, I disagree. The advertisement clearly states it is for an “entire kitchen” including cabinets, countertops, and fixtures. Additionally, the Larsens made it known it was their intention to utilize both the cabinets and the countertops. Though Mrs. Mueller stated she could not “guarantee” there would be no damage to the cabinets and countertops during removal, I find that the complete destruction and throwing away of the granite countertops significantly changed what the parties had agreed to. The parties agreed to the purchase and sale of cabinets and countertops, and I find Mrs. Mueller’s failure to actually provide the granite countertops is a fundamental breach of the parties’ agreement.

17.   In law, a true deposit is designed to motivate contracting parties to carry out their bargains. A buyer who repudiates the contract generally forfeits the deposit. An example of repudiation is when a party refuses to purchase what they had agreed to buy. In contrast, a partial payment is made with the intention of completing a transaction. Here, I find the $3,000 was a partial payment towards the $6,000 purchase price. I find this is consistent with the parties’ behaviour, including Mrs. Mueller advising other potential purchasers that the items had sold. Even if I found the deposit was a true deposit, I find it was Mrs. Mueller who repudiated the contract by failing to deliver the granite countertops as agreed. Therefore, nothing turns on whether the $3,000 was a true deposit or a partial payment, because based on her breach of the contract, I find Mrs. Mueller must refund the Larsens $3,000.

18.   As I have found Mrs. Mueller was the party who breached the contract, it follows that she is not entitled to her claimed $500 in loss of value for selling the cabinets at a reduced price.

 

19.   The Court Order Interest Act applies to the CRT. The Larsens are entitled to pre-judgment interest on the $3,000 from August 1, 2021, the day they requested their money back, to the date of this decision. This equals $9.26.

20.   Under section 49 of the CRTA, and the CRT rules, a successful party is generally entitled to the recovery of their tribunal fees and dispute-related expenses. I see no reason to deviate from that general rule. As the Larsens were successful, I find that they are entitled to reimbursement of the $150 they paid in tribunal fees. As Mrs. Mueller was not successful, I dismiss her claim for tribunal fees. Neither party claimed dispute-related expenses.

ORDERS

21.   Within 30 days of the date of this decision, I order the respondent, Katherine Mueller, to pay the applicants, Mitchell Eric Larsen and Shelley May Larsen, a total of $3,159.26, broken down as follows:

a.    $3,000 in debt for reimbursement of the deposit,

b.    $9.26 in pre-judgment interest under the Court Order Interest Act, and

c.    $150 in tribunal fees.

22.   The Larsens are also entitled to post-judgment interest, as applicable.

23.   Mrs. Mueller’s counterclaim is dismissed.

24.   Under section 48 of the CRTA, the CRT 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 CRT’s final decision.

 

25.   Under section 58.1 of the CRTA, a validated copy of the CRT’s order can be enforced through the Provincial Court of British Columbia. A CRT 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 CRT order has the same force and effect as an order of the Provincial Court of British Columbia.