Handwritten 'contract of purchase and sale' rejected by B.C. Supreme Court

An image of the handwritten agreement is published with the judge's decision on the court's website. (bccourts.ca)

A handwritten document purporting to facilitate the sale of a commercial property for well below its assessed value has not held up in B.C. Supreme Court.

The document was a key piece of evidence in the dispute between plaintiffs Abdul Sabour Mohammad Latif and Haris Azimuddin and defendant Chandu Nair, who sued and countersued each other over the failed private sale of Nair's unit in a Surrey commercial strata development.

Latif and Azimuddin alleged that they had reached a verbal agreement to buy Nair's property – an auto body shop which was located two doors down from their own auto sales and service business, AFG Auto Sales Ltd., in the same development – for $450,000.

They further alleged that the handwritten document, which Nair signed, formalized the verbal agreement and functioned as a contract of purchase and sale, which Nair breached by changing his mind and attempting to return their deposits.

Nair told the court he never verbally agreed to sell the property for $450,000, and only ever discussed the possibility of selling it to the AFG owners. He claimed he expressed a willingness to sell it to them for $550,000, but there was never a formal agreement to do so, verbal or written.

The property is located on 76 Avenue in Surrey's Newton neighbourhood. BC Assessment describes it as a 1,202-square-foot "strata warehouse," and lists its assessed value as $839,500 on July 1, 2023.

In his counterclaim, Nair alleged Latif and Azimuddin had abused the court's process by filing a certificate of pending litigation on the title of his property, and that – by engaging in such abuse – the plaintiffs had caused an agreement to sell the property to different buyers for substantially more money to fall through.

Justice Janet Winteringham issued her decision on both parties' claims Friday, and it was posted online Monday. 

Doubts about the document

Central to Nair's counterclaim about abuse of process was his assertion that the handwritten document had been altered after he signed it.

The document, as reproduced in the court decision, lists the names and addresses of the parties, and is labelled "contract of purchase and sale addendum." It has the date "2021/09/02" in the centre and reads "price $450,000."

The only other information on the document is a statement about Azimuddin providing $10,000 in cash toward the purchase of Nair's unit, as well as two lines with signatures on them, one next to the $10,000 amount and another next to "$15,000."

The $15,000 figure represented an initial deposit that had already been made via bank draft, according to the decision.

Nair told the court the handwritten document was a receipt, and said when it was presented to him, it had only the lines about the two deposits on it. None of the other details, including the $450,000 price, were present, according to Nair.

The plaintiffs maintained that they had not altered the document, and Winteringham did not go so far as to conclude that they had. Rather, the judge noted that she found Latif and Azimuddin's testimony "to be curious on points that mattered."

With regard to the handwritten agreement, specifically, Winteringham found the plaintiffs' testimony "to lack credibility and reliability."

Price and timing

While the plaintiffs maintained throughout the court proceedings that the parties had agreed on a purchase price of $450,000, the judge noted that Nair was "adamant" that he had not.

Winteringham was satisfied based on the evidence in the case that Nair had never been provided with a draft contract of purchase and sale, which would have given him the opportunity to voice his concerns about the price.

Moreover, the judge stressed that the plaintiffs – as the ones bringing the case – bore the burden of proving their allegations on the balance of probabilities, meaning they had to establish that their version of events was more likely than not.

"I do not find that the plaintiffs have dispelled their burden in establishing that Mr. Nair accepted the offer to sell the property for $450,000," the decision reads.

"That figure, in light of the applicable circumstances, is below what I am prepared to accept that Mr. Nair would have accepted for the property, and, insofar as no written contract was provided by the plaintiffs, it has not been shown that Mr. Nair ever had a sufficient opportunity to review and refute the $450,000 figure."

Likewise, Winteringham concluded there were "several issues" related to the creation of the handwritten document that made it an unreliable source for the $450,000 price.

The plaintiffs maintained throughout the trial that the document was created at the same time the $10,000 cash was paid, and that this occurred in January 2022, according to the decision.

However, testimony from a paralegal the plaintiffs hired to draft a formal contract of purchase and sale contradicted this timeline. She told the court that Latif told her about the handwritten agreement and the $10,000 cash payment when he first contacted her in the fall of 2021, and Winteringham accepted this evidence.

The judge also noted a Realtor Nair hired to find new buyers – and who had attempted to return the deposits to Latif and Azimuddin – "repeatedly" testified that the plaintiffs described the handwritten document as a "receipt."

"This description is consistent with how Mr. Nair described the handwritten document and how, in his testimony, it was presented to him for signature," the decision reads.

"On this point, I accept Mr. Nair’s explanation about why he signed the document. He was receiving a cash deposit and signed his name to acknowledge receipt of that money."

Further, Winteringham noted that the plaintiffs did not provide Nair with a copy of the handwritten document. If both parties had a copy of the document in question, "the conflict about its contents would not have arisen," according to the judge.

All of these factors contributed to Winteringham's conclusion that the plaintiffs had not proven their allegations on a balance of probabilities.

The counterclaim

Winteringham also dismissed Nair's counterclaim, finding that – although he had established that he suffered a loss as a result of the plaintiffs' certificate of pending litigation – the evidence to support his claim that the handwritten document had been altered was insufficient.

"I have not found that the handwritten document was manipulated by the plaintiffs," the decision reads.

"Rather, uncertainties surrounding the creation of the handwritten document and its timing have led me to conclude that the plaintiffs have failed to meet their evidentiary burden in proving the existence of an agreement, oral or otherwise, to purchase the property."

Without evidence that the document was altered, the judge saw no reason to conclude the certificate of pending litigation should not have been filed.

"The record before me does not establish that the plaintiffs’ actions were nefarious, nor does that record reveal an abuse of process," the decision reads.

With both the claim and counterclaim dismissed, the parties agreed that Nair should return the $25,000 to Latif and Azimuddin, according to the decision.

Winteringham also ordered each party to pay the other's court costs for its unsuccessful claim, though she left the parties the option to make submissions on a different arrangement for costs.

"As the successful party, the defendant is entitled to his costs in defending the action," the decision concludes. "As the successful party on the counterclaim, the plaintiffs are entitled to their costs in defending the counterclaim."