Cite as: Andrews v. Allen, 1992 NSCO 9 , 1991 PROVINCE OF NOVA SCOTIA COUNTY OF HALIFAX I NTH E C 0 OF DISTRICT NUMBER BETWEEN: SHEILA ANDREWS - AND JAMES ALLEN AND ,
Derek E. Vallis, Esq., Counsel for the Appellant. Norman B. Hill, Esq., Counsel for the Respondents. 1992. October 8th, This is an appeal from a decision of Harold G. Q.C .• an adjudicator of the Small Claims Court of Nova Scotia. bearing date the 18th day of September 1991. Appellant filed an application to State a Case on October 11th. 1991. appealing on the following grounds. ( a ) . The dec i s i on adjudicator was erroneous of law; and. (b) It constitutes natural justice. C.H. No.: 76113 U N T Y C 0 U ROT
ONE
APPELLANT WENDY ALLEN RESPONDENT Palmeter. C.J.C.C.: S. Adams, The namely: of the learned in point a denial of
-2 The Learned AdjUdicator filed the Stated Case on November 25th, 1991. A hearing on this appeal took place before me on April 9th, 1992 at which time the matter was remitted to the Learned AdjUdicator determination of special issues pursuant to RegUlation 16( 7) of the RegUlations made Claims Court Act. This re-statement of the Stated Case and the determination of special issues was filed by the Learned AdjUdicator on May 25th, There is no need for me to set forth the facts herein as they are well stated in the Stated Case and re statement thereof on file herein. denial of natural justice I accordingly, this ground will be dismissed. the question as to whether there has been any error in law on the part of the Learned AdjUdicator. The action involved basement of a property sold Respondents, which manifested itself to the Respondents after the sale had been completed. damages for repair of the basement wall and fixing the leak. for a re-statement and pursuant to the Small 1992. On the ground of find no merit in this and, This leaves a water leak in the by the Appellant to the The claim is for
, -3 Among the many findings of fact found by the Adjudicator, and enumerated in the Stated Case, are the following important findings, namelY; 1. The Appellant knew that she had a water problem in the basement of the property pr ior to the sale to the Respondents. 2. That the defect causing the , water problem was a latent defect, that is, a defect which could not be discovered by a purchaser on an inspection of ordinary vigilance. 3. That this defect, and the water problem resulting therefrom. was not communicated by the Appellant to the Respondents prior to the sale, although the Appellant had mentioned a water problem to the Real Estate Agent prior to the sale but this had not been communicated to the Respondents. 4. That the Real Estate Agent
-4 involved was the Agent of the Vendor, the Appellant. 5. That the dwelling sold by the Appellant was appropriately 25 to 26 years old and the Appellant was the first original owner of the dwelling. On an Appeal by way of Stated Case, it is not for this Court to interfere with findings of fact made by the Learned Adjudicator unless there is an error in law apparent from the Stated Case. This Court, again, cannot consider or go over the evidence presented before the Adjudicator, and accepted by him, in making his findings of fact. In the face of the Stated Case I can find no error in law. Counsel for the Respondents submitted the doctrine of "Caveat Emptor" and submitted that the Learned Adjudicator erred in law in finding that there was a duty upon the Appellant to disclose these latent water problems to the Respondents. The Appellant further states that the Adjudicator erred in law in finding the defects were latent in nature, but it is clear that I cannot interfere with this finding.
-5 Counsel for the Respondents case of Unrau and Unrau v. 256. which was the case considered by t~e Adjudicator as set out in his re-statement of Unrau. Clarke. J. (as he then was) referred to Halsbury's Laws of England (4th Ed.) Vol. as follows: "However. any active con~ealment by the Vendor of defects ,
otherwise be patent is treated as fraudulent. and voidable by the Purchaser if he has been decei ved by it. calculated to mislead a purchaser or lull his suspicions with regard to a defect known to the Vendor has the same effect." In Unrau the Trial Division of Court found liability for a defect which had been covered up by the Vendor, although without fraudulent intent. and which would otherwise have been voidable. The Learned Adjudicator found there was a duty on the Appe llant to di sc lose disclosing, in effect lulled believing there was no problem. Appellant had dis~losed the problem to her Real Estate Agent prior to sale did not. referred to the Gay (1983). 61 N. S. R. (2d) t·he Stated Case. In 42, Para 29, at page 262 which would the contract is Any conduct the Supreme the defect. and by not the Respondents into The fact that the in the opinion of the
Adjudicator, relieve her from making sure the Respondents were informed. With both of these conclusions I do not take issue and I find no error in law. I will, accordingly, dismiss the Appeal herein and award costs to the Respondents in the amount of Fifty. Dollars ($50.00). of the County District Number
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