Professional Documents
Culture Documents
[7] While December 29, 2004 was selected as a target date for
closing, as the trial judge found, time was not of the essence.
[page725]
[8] While Allen and his solicitor were in attendance and
prepared to close the transaction on December 29, Wallace did
not attend on that date.
[9] There was evidence that Wallace had gone to Florida to be
with his family and did so with Allen's knowledge, approval
and, indeed, encouragement. When Wallace did not appear on
December 29, Allen treated the transaction as at an end and
refused to close the deal or to propose an alternative date for
closing and making time of the essence in relation to that new
date.
[10] Wallace sued for specific performance and the trial
judge dismissed his action, essentially finding that the
parties did not intend that there be a binding contractual
relationship until the final Share Purchase Agreement was
signed.
[11] For the reasons that follow, I would allow the appeal,
set aside the judgment dismissing the action with costs and in
its place grant judgment in favour of Wallace for damages and
costs.
The Facts
[12] In the weeks after Wallace first told Allen he would be
interested in purchasing Allen's business, the parties worked
hard at negotiating an agreement. During these negotiations,
Wallace presented two draft Letters of Intent to Allen, which
he refused to sign because, as he put it, "there remained too
retirement and the fact that he had "sold" his company and that
the "deal was solid". Allen then turned the floor over to
Wallace, who spoke to the employees.
40 DAYS
[38] In view
issues, it is
4. Did the
remedy