We lost the Special Case because our lawyers could not introduce our best defence - a multitude of misrepresentations and breaches of contract.
If breach of contract was really your "best defence", why did the owners fight the special case at all? Are you suggesting the lawyers wasted $300,000 of owners money and six months of time fighting the wrong battle? Because that time and money is now wasted. None of the lawyers are offering to continue to fight for free.
If I had just spent $300,000 in legal fees and wracked up thousands of dollars in extra costs and my legal counsel had ignored my "best defence", I'd be pretty pissed off.
I would also refer to my first post today. If Northwynd has really breached its contracts, the owners should have already filed an injunction to stop their activities. The fact no injunction has been filed or is even being contemplated speaks volumes.
Owners who have read Justice Loo's ruling in full should be thanking her for the level of detail she provided. Justice Loo has gone to great lengths to explain two things to the owners:
1) Pursuing further justice through a breach of contract argument would result in unnecessary litigation, be timing consuming, and expensive.
2) If you try, you'll lose.
Justice Loo included everything you could possibly need in her ruling to realize the futility of the breach of contract argument.
The largest set of allegations made by the owners are all that Fairmont were bad guys and did a bunch of damage to the resort. The problem is those allegations are irrelevant. Justice Loo specifically addressed this (paragraph 111) by stating "it appears to me that Northmont acquired the Foreclose Assets - including the vacation interval agreements - free and clear of any pre-existing liablities of Fairmont or any claims that the owners may have had against Fairmont." In other words, if Fairmont did bad things, the owners should have sued Fairmont 4 years ago.
The owners argued that the deferred maintenance has caused damage. Justice Loo specifically addressed this (paragraph 97-100) by stating "there is no evidentiary or legal basis before me to found the argument that deferred maintenance has resulted in damage" and "the owners do not cite any legal basis to found the argument that they are relieved of the obligation to pay for repair costs associated with failure to maintain, or a deferral of maintenance." In other words, the owners *did* argue this, produced no evidence or legal basis to support their position that damage had occurred and even further, produced no legal basis to support their position that even if damage had occurred, it would somehow stop them from being liable.
Justice Loo specifically addressed the renovation plan (paragraph 95) by stating "I am satisfied that the renovation plan reflects a reasonable course of action...and the costs associated with it fall within the contractual obligations of the owners." This means you *cannot* argue the renovation plan is wrong in any future breach of contract suit.
Lastly, Justice Loo addressed the management of the resort (paragraph 82) by stating Northmonts "contractual responsibility to manage the resort in a prudent and workmanlike manner, does not impose on it the obligation of an insurer, and necessitates only that it acts reasonably." You might think Northmont should have done something else, like provide the financial statements sooner, but their obligation is only to have acted reasonably.
The entire breach of contract argument is summed up by paragraph 52 of Justice Loo:
"<owner> suggests that there are things that were not done by either Fairmont or Northmont, and that the project renovation fee covers damage caused by lack of maintenance in the past and contends that the owners are not liable for damage caused by lack of maintenance. However, <owner> cannot say what damage might have been caused by lack of maintenance, or what ought to have been done and was not done by Fairmont or Northmont, and the owners concede that <owner> is not an expert"
It is one thing to make a bunch of wild accusations on the internet behind a veil of anonymity. It is another thing to make them in a court of law and produce fact, law, and evidence to support them.
Bottom line - This case cries out for justice, and the only way to obtain justice is through the courts.
Justice which has been achieved through the courts at great cost to both sides.
http://www.courts.gov.bc.ca/jdb-txt/SC/13/20/2013BCSC2071.htm
If you choose to ignore it...