Master Russell dismissed the plaintiff's application for summary judgment seeking a declaration that a termination notice was of no effect and specific performance of a mining tenement sale agreement. The Court held that the defendant raised triable issues as to whether the agreement was validly terminated by the termination notice, alternatively terminated through acceptance of an anticipatory breach/repudiation based on a telephone conversation in which the plaintiff indicated inability to complete, or alternatively abandoned by the parties' subsequent conduct including a three-month silence before the plaintiff attempted to tender completion funds. The Court noted that evidence of the critical conversation needed to be tested at trial and that the question of whether the plaintiff's conduct amounted to repudiation required objective assessment on the full evidence.
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