Richmond, The Monterey: A Michael Audain / Polygon leaky rotten condo development

* * * * * caveat emptor * * * * *

The Monterey (Richmond): Court rules leaky condo owners of Polygon development can pursue prosecution

 

 LRC Monterey by Polygon in Richmond

 

Citation:

The Owners, Strata Plan NW3178 v. Polygon Ventures et al

Date:

20021216

 

2002 BCSC 1729

Docket:

S045719

Registry:  New Westminster

IN THE SUPREME COURT OF BRITISH COLUMBIA

BETWEEN:

THE OWNERS, STRATA PLAN NW 3178

PLAINTIFFS

AND:

 

POLYGON VENTURES LIMITED, POLYGON

CONSTRUCTION LTD., POLYGON HOLDINGS LTD.,

POLYGON PROPERTIES LTD., WINCHESTER INVESTMENTS

LTD., THE POLYGON GROUP, CORPORATION OF THE

CITY OF RICHMOND, GRAHAM F. CROCKART, ARCHITECT

INC., SERTEX PLUMBING B.C. LTD., JKM ENGINEERING

LTD., ALMETCO BUILDING PRODUCTS LTD., ROLAND P.

HOULE DOING BUSINESS UNDER THE TRADE NAME

AND STYLE OF DEC-K-KING AND THE SAID ROLAND

P. HOULE, RAY CARSON, HANSOME & CASTORO (A

PARTNERSHIP), JOHN DOE #3, GRAHAM F. CROCKART,

JAMES K. MAH, OCEAN PARK MECHANICAL LTD.,

AND WEST COAST STUCCO INC.

 

DEFENDANTS

 

 

REASONS FOR JUDGMENT

OF THE

HONOURABLE MADAM JUSTICE ROSS

(IN CHAMBERS)

 

 

Counsel for the Plaintiffs

R. Glen Boswall

Counsel for the Defendant,

Hansome & Castoro (a partnership)

 

Kevin G. O'Callaghan

Date and Place of Hearing:

November 20, 2002

 

New Westminster, BC

 

[1]            This is an application by the defendant Hansome & Castoro (a partnership) ("Hansome") by which it seeks to enforce an agreement to discontinue the action it alleges was reached with the plaintiffs, The Owners, Strata Plan NW 3178 ("Owners") or, in the alternative, to have the claim against it dismissed for want of prosecution.

[2]            The plaintiffs are the owners of a residential condominium building that is alleged to have suffered extensive water damage due to construction deficiencies including allegedly improperly designed and installed window assemblies and surrounding membrane and caulking.  Hansome has been identified as the subcontractor responsible for installing the windows in the plaintiffs' building.

CHRONONLOGY

 

[3]            The Owners began taking possession of condominiums in the building in April 1990.  Water leaks were reported soon after and the Polygon defendants began to make attempts to repair the problems.

[4]            In 1994, the Polygon defendants ceased their efforts at repair and the plaintiffs retained various contractors in an effort to repair the problems.

[5]            In July 1996, the plaintiffs obtained a report on building envelope deficiencies from Levelton Associates.  The first phase of building repair commenced in 1997.

[6]            The plaintiffs filed a writ naming the Polygon companies as defendants.  In August 1998, plaintiffs' counsel wrote seeking from the Polygon defendants the names of all parties who may have been responsible for the deficiencies in the building.  A further like inquiry was directed in October 1998 to counsel for the Polygon defendants.

[7]            The plaintiffs filed an amended writ in November 1998 adding additional defendants.  In December 1998, a representative of Polygon identified Hansome as the subcontractor responsible for installing windows in the plaintiffs' building.  The plaintiffs filed a further amended writ in February 1999, adding additional defendants including Hansome.

[8]            In May 1999, the plaintiffs filed a Statement of Claim, and issued a demand for discovery of documents and interrogatories to the Polygon defendants and the defendant Graham F. Crockhart Architect Inc.  Supplementary interrogatories were issued to the Polygon defendants in June 1999.

[9]            In July 1999, the plaintiffs filed a Reply, issued demands for particulars to several of the defendants and further Interrogatories, this time to Ronald P. Houle, Graham F. Crockhart Architect Inc. and Graham F. Crockhart.  Additional replies were filed in August 1999.

[10]        In October 1999, the Strata Council was unable to pass a 3/4 majority resolution to provide ongoing funding for the litigation.  A resolution was then passed authorizing the Strata Council to instruct counsel to discontinue or dismiss the action against all the defendants.  Forms were distributed to the individual owners to provide their consent to ending the litigation claims made on their behalf.

[11]        Many of the owners were opposed to giving up their claims in the litigation.  This posed a dilemma for the Strata Council.  The decision was reached to amend the writ such that thereafter the plaintiffs would be only those owners who were willing to give up their claims.  Then discontinuance or dismissal would be sought.

[12]        At about this time, Fasken Martineau DuMoulin LLP was retained to represent Hansome.  Ms. Pratchett took conduct of the file.  In early January 2000, she communicated with Mr. Mendes, then counsel for the plaintiffs.  He informed her that he believed that the plaintiffs had passed a motion to discontinue the action and that she should take no steps in the proceeding.  Ms. Pratchett confirmed this conversation by letter dated January 6, 2000.  She sent a second letter to similar effect dated March 14, 2000.

[13]        There followed a series of communications between Ms. Bauder, Ms. Pratchett's assistant and Ms. Neun, one of the counsel for the plaintiffs.  Ms. Pratchett followed up with another letter dated November 2, 2000, inquiring of the status.

[14]        There followed a letter addressed to all defendants' counsel dated November 21, 2000.  The letter states:

We write further to earlier discussions with counsel about the discontinuance of this matter.  We wish to apprise you regarding how we intend to proceed from this point forward.

 

We are seeking the defendants' consent to discontinue the Plaintiff's action without costs.  Prior to finalizing any such agreement, we will be amending the Owners' pleadings (pursuant to Rule 24(1)(a)) to specify that the Strata Corporation has sued on its own behalf and on behalf of certain individual owners only.  The said individual owners are those who formally consented to an action for damages in respect of their individual strata lots.

 

Without the proposed amendments, the Strata Corporation is otherwise unauthorized to properly discontinue the action.  This is because section 172 of the Strata Property Act (and section 15(7) of the Condominium Act) require that the Strata Corporation obtain the consent of those owners on whose behalf it sues in respect of matters affecting individual strata lots.  As the consents of some owners were obtained it is necessary to formally discontinue the action on behalf of the said owners.  A copy of the as yet unfiled amended pleadings is enclosed.  We will forward a filed copy on receipt of same.

 

If you are prepared to discontinue this action without costs, please sign below to indicate your consent.

 

[15]        Hansome takes the position that by the terms of this letter the plaintiffs offered to discontinue that action against it without costs.  It submits further that it was a term of the agreement that the plaintiffs would file the amended statement of claim and the discontinuance once the amended statement of claim was filed.

[16]        The plaintiffs' position is that the intention was to secure the consent of all defendants and that no individual offer was made or intended.  In other words, unless all defendants agreed, there would be no dismissal or discontinuance.

 

 (More)