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TERMS - Express terms

Monday, April 24, 2017 @ 11:26 AM  

Lexis Advance® Quicklaw®
Appeal by the plaintiff, Gescan, from dismissal of its claim against the defendant, Behroozi. In 2015, the plaintiff obtained a default judgment against Vancouver Green Electric (VGE) totaling $68,127. The amount claimed was based on the supply of electrical materials by the plaintiff to VGE for several construction projects. In 2016, the plaintiff's summary trial claim against Behroozi was dismissed. The plaintiff had sought to impute joint liability based on Behroozi's role as a co-covenantor under a credit application to pay the debts of VGE. The credit application identified Behroozi as the principal or director of VGE. The summary trial judge concluded that Behroozi's execution of the agreement did not render him jointly liable with VGE. The judge determined that Behroozi's signature bound VGE. An additional signature by Behroozi was required to bind him jointly as a principal or co-covenantor. The plaintiff appealed.

HELD: Appeal allowed. VGE was clearly the "customer" under the contract and Behroozi was identified as "principal or director". The trial judge correctly considered VGE as the "applicant" receiving credit. There was no ambiguity in the contract's description of the obligations of the principal co-covenantor. As a matter of construction, Behroozi agreed to terms and conditions that expressly included an agreement to be jointly and severally liable with VGE as principal debtor to the plaintiff. The fact the contract was signed only once by Behroozi did not give rise to such ambiguity as to make the clear words of the agreement unenforceable. The judge's finding to the contrary was erroneous. The dismissal of the claim against Behroozi was set aside and substituted with an order for judgment in the amount claimed.

Gescan, a Division of Sonepar Canada Inc. v. Vancouver Green Electric Ltd., [2017] B.C.J. No. 679, British Columbia Court of Appeal, P.A. Kirkpatrick, H. Groberman and P.M. Willcock JJ.A., March 8, 2017. Digest No. TLD-Apr242017002