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F and A were directors and (with their families) 60/40 shareholders in a Co. The Co owned a block of land.

F and A discussed an arrangement where each would get - for themselves - a small parcel of land subdivided from the Co’s larger block without paying: [7]

A’s parcel was subdivided and transferred to A with a price of $175K recorded on the sale contract, but nothing paid: [8], [9]

F applied to subdivide their block but was unsuccessful: [8], [10]

Years later, after a curious meeting with F and a private investigator engaged by F, A paid the $175K to the Co: [11] - [17]

F commenced proceedings seeking (among other things) specific performance of the agreement: [20]

F lost, including because the primary judge found there was no binding obligation to cause the subdivision and distribute F's block: [26]

The CoA noted the payment of $175K was curious as it was never demanded and was made after A felt “intimidated and confused” following the private investigator meeting: [44]

A argued that even if there was a binding contract, F repudiated it by causing the private investigator to behave as they did and demanding the $175K: [39]

However as F had already performed their obligation to cause the Co to transfer the land to A; there were no obligations left for F to evince an intention not to be bound by. F did not repudiate: [46]

The net effect of the binding obligation, and A acting on it while F did not, is F received nothing from the arrangement and A received their land: [61]

(A may have a remedy to recover the $175K but that was not raised in these proceedings: [62])

A repudiated by purporting to accept F’s alleged repudiation, so evincing invention not the be bound b the Agreement: [63]

There were difficulties with the order for specific performance sought, including identifying the land that would be the subject of any order, and any planning or zoning issues that might prevent subdivision: [64]

The matter was referred back to the primary judge to consider specific performance versus damages: [66]

Appeal allowed.