Dissenting Judge Sides with Concord Pacific’s Claim
VANCOUVER, British Columbia, Jan. 20, 2022 (GLOBE NEWSWIRE) -- Today, in a rare split decision, the British Columbia Court of Appeal dismissed the appeal of Concord Pacific Acquisitions Inc. ("Concord") in its litigation with Hong Leong Oei ("Oei") and his holding companies that control the Plaza of Nations site on Vancouver's False Creek.
Concord and Oei signed an agreement that stated in writing that it is binding, and Concord paid Oei $10 million in cash which has not been returned to Concord. But the trial court ruled that the agreement is not binding. The appeal is over whether the agreement between the parties is binding.
The dissenting judge siding with Concord noted: “The majority decision in this case could render such agreements, which serve a vital commercial purpose, meaningless or at the very least, uncertain, and frustrate complex deals or arrangement. This is untenable.”
Since acquiring the former Expo lands in the late 1980s, Concord has grown to become Canada's largest builder of master-planned communities – its flagship being Concord Pacific Place that surrounds the Plaza of Nations and lines False Creek. In the past 3 decades, this community has seen the building of over 11,000 homes, numerous public parks, daycares, recreation facilities and 3 km of seawall. Concord is local and has deep roots supporting the community. It is now in the process of completing the development from the Plaza of Nations to the east end of False Creek.
In 2015, Concord negotiated a commercial deal with Oei (who had purchased the Plaza of Nations lands more than 30 years ago) because it wanted to bring its experience and resources to bear in ensuring completion of the entire neighbourhood on the north shore of False Creek. Later that year, Concord filed its lawsuit to seek to enforce the deal, again with the aim of seeing neighbourhood development on the north shore of False Creek proceed to completion.
During trial it was uncovered that Oei had already purported to have sold a large interest in the Plaza of Nations project to offshore investors (which transaction has triggered additional litigation against Oei). As a result, Concord was forced to limit its claim to recovery of its financial losses. In previous litigation in Singapore, Oei swore that the agreement with Concord was binding; yet he claimed in B.C. that it was not binding and the trial court found the agreement was too uncertain to be binding. Concord disagreed and filed its appeal.
In today’s decision, the majority judges found insufficient legal grounds to interfere with the trial decision, reflecting on the high degree of deference afforded by appellate courts in contract cases. However, a strong dissent not only found “Mr. Oei and HK Expo breached the Heads.” and along with legal errors in the trial decision also noted that the majority’s decision “could have an enormous impact on the business community” by rendering it impossible, or at the very least too uncertain, to undertake complex transactions in the manner the parties sought to do in this case, with a narrow initial agreement that contemplates future agreements.
Concord is naturally disappointed with the result of the appeal. Concord feels strongly on its position and intends to seek leave to appeal to the Supreme Court of Canada. If successful on appeal, Concord would continue to seek damages based on the findings of the trial judge that: "I consider that the Defendants [Mr. Oei, HK Expo and CMPC] breached their obligation of honest performance …. They were not honest in relation to the origins and status of the Loan Agreement…." The Loan Agreement is related to a Deutsche Bank financial arrangement designed by Mr. Oei Hong Leong and concealed from Concord. The concealed financial arrangement is one of the main issues in the case.
Regardless of the ultimate outcome of this legal dispute, Concord's hope is that development of the Plaza of Nations site will soon proceed in the interests of the community at large.
