The buyer of a luxury West Vancouver condo is suing the developer for return of the deposit after she claims the contract was cancelled while she struggled to get money out of China.
Jun Chen took action in B.C. Supreme Court on Aug. 8 against Onni Taylor Way Properties Ltd., the company developing the terraced Evelyn condos on a slope behind Park Royal Shopping Centre.
Chen lives in Nanjing, the 11.7 million population capital of China’s Jiangsu province. She agreed to buy a condo in the At Forest’s Edge Three and At Forest’s Edge Four complex for $4.4 million in four instalments, with the balance owing before 4:30 p.m. on the completion date, which would be 10 days after Onni’s notification that the property was ready for occupancy.
The court filing says that Chen’s real estate agent, Robin Fu, entered into an agreement on Aug. 3, 2017 that called for the defendant to pay the agent’s brokerage a 4.255% commission on the first $100,000 and 1.1625% on the balance of the purchase price.
Chen paid the deposit in full, according to the statement of claim, but had a “seriously limited ability to read English” and claims the agent did not reasonably and adequately explain to her what the contract provided for and what consequences would follow from breach of contract.
Chen claimed her circumstances changed since the Chinese government moved in August 2017 to stiffen regulations about foreign currency exchange. Chinese citizens can purchase, in China, up to USD$50,000 a year. At the start of 2019, the Chinese government ruled that Chinese citizens must not use foreign currency purchased in China to buy real estate in foreign countries.
“That is to say, the Chinese government made it clear that it has become illegal for the plaintiff to exchange, in China, her Chinese money for Canadian dollars with a view to buying the property, which is located in Canada,” said the statement of claim.
Chen claimed she had sufficient funds, but could not convert her Chinese money to pay the balance and complete the contract on time because of China’s foreign currency control that prevented her from converting Chinese money into Canadian dollars.
Onni’s lawyer, Gowling WLG, notified Chen’s lawyer, Remedios and Co., on April 23 that the property was ready to occupy and the completion date would be May 3. A day later, Chen was granted an extension to July 15, on the condition that she would pay an additional deposit equal to 10% of the purchase price.
But, Chen alleges, Onni changed its mind on May 23 and moved the deadline to June 6. On or about June 7, Onni changed its mind again, extending the deadline to June 28. One of the conditions was for Chen to provide an additional $220,495 non-refundable deposit.
But, on June 13, Onni’s law firm Owen Bird told Chen’s lawyer that Onni terminated the contract because Chen failed to pay the balance on time. As a result, Chen’s deposit and accrued interest was forfeited to Onni.
Chen, whose lawyer is Hao Han of Han Lawson, is asking a judge to declare the contract void and to return her deposit, plus interest and costs.
Chen’s allegations have not been tested in court and Onni has not filed a response.
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