BURST
A Kelowna couple who were waiting for their purchase of a Big White condo to close learned on the day that the sale was supposed to complete that it wasn’t going to happen.
“We really didn’t think anything was wrong until the closing date,” said Anne Marie Kirby after losing a lawsuit in B.C. Supreme Court to recoup the couple’s losses. “Our lawyer asked us, ‘Why am I not getting the closing documents?’”
In a case the judge called “the stuff of nightmares,” the lawyer for Kirby and her husband, Russell Kirby, had been dealing not with the owners, Luke and Kim McNally, who live in South Africa, but with unidentified fraudsters, who had passed themselves off as the McNallys, said Anne Marie.
Both the Kirbys and the McNallys sued Kelowna realtor Gary Turner and the brokerage Royal LePage Kelowna, seeking damages.
But after a nine-day trial, Justice Elin Sigurdson ruled Turner, who represented the fraudsters, believing they were the McNallys, didn’t owe either couple a duty of care because he wasn’t representing them.
But she did say their case “merits considerable sympathy.”
She wrote that the “intrusion and trickery” committed by the fraudsters was an invasion of privacy, an attempt at significant theft, and caused harms ranging from inconvenience to lost time and expenses, as well as “lost opportunity cost” in the value of the property.
She called it a “psychological disruption” that was “extremely distressing.”
“We’re just glad it’s over, it’s been five years,” said Anne Marie Kirby.
And they realized the ordeal could have been a lot worse. The deal for the $600,000 condo at the popular Interior ski resort fortunately fell through after the fraud was detected, but the Kirbys were left with a loss of about $75,000. That included fees for conveyance, legal and other fees, as well as the loss of the equity they would have gained had they purchased the unit, the judgment said.
The fraudsters vanished and they don’t know and likely will never know who they are, the couple said.
They sued Turner and Royal LePage Kelowna, alleging they were negligent for not properly identifying his clients and were seeking $75,000 in damages, they said. The McNallys were claiming their own undisclosed damages.
But Sigurdson concluded that at the time that the realtor defendants “took the steps they were responsible to take, at the time they were required to take them.”
The defendants therefore did not breach the standard of care expected of them, and they were not liable for negligent representation, she wrote.
The plaintiffs alleged Turner and others involved should have been found not credible, saying they were “evasive and dishonest” and their evidence was affected by their self-interest.
Turner and Royal LePage Kelowna disagreed, saying any allegations of dishonesty by Turner aren’t supported by evidence, according to the judgment.
Turner had asked for and had never received the ID documents from the fraudsters he had requested, but instead the fraudsters, who had broken into the McNallys’ email, had sent fake South African passports for the McNallys, according to the ruling.
It was never determined how they obtained the McNallys’ personal information, Sigurdson wrote.
She said she couldn’t conclude on the facts that the defendants should be liable because of negligent representation and dismissed the lawsuit.
“The McNallys and the Kirbys did nothing wrong,” she said. “They were unknowing victims of email impersonators who aimed to profit or cause mischief or both.”
But, she added: “I must assess the facts of this case on the basis of the standards in place at the time, and not on what I wish or believe should have taken place.”
“The judgment speaks for itself in the complete exoneration of the agent and the brokerage,” Turner’s lawyer, Kelly Murray, said in an email.