Waisman and Ross et al. v. Crown Trust Company

Waisman and Ross et al. v. Crown Trust Company

The Court allowed the appeal, holding that use of the firm name in the statement of lien was equivalent to naming the partners in the circumstances and, having caused no prejudice, the defect was cured by s.28; additionally the $5,000 payment recorded in the firm's books had not been communicated to the debtor and therefore could not be appropriated to reduce the lien, so the trial judgment was varied to increase the lien to $13,662.72.

Citation
[1970] SCR 553
Parties
Plaintiff/appellant: Allan H. Waisman and Jack M. Ross (Waisman, Ross & Associates); Defendant/respondent: Crown Trust Company
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
2 March 1970
Procedural Posture
Mechanics' Lien Action / Appeal to Supreme Court of Canada From Alberta Appellate Division
Outcome
Appeal allowed; trial judgment restored as varied.
Legal Topics
Mechanics' Liens, Priorities and Hypothecs, Formality of Lien Statements, Firm Name Vs Individual Partners, Allocation of Payments
Source Language
English
Property Law Secured Transactions Civil Procedure Statutory Interpretation Mechanics' Liens Priorities and Hypothecs Formality of Lien Statements Firm Name Vs Individual Partners +1 more

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Parties

Allan H. Waisman and Jack M. Ross (Waisman, Ross & Associates)

Plaintiff/appellant

Crown Trust Company

Defendant/respondent

Procedural Posture

Mechanics' Lien Action / Appeal to Supreme Court of Canada From Alberta Appellate Division

Legal Issues

  1. 1 Whether a statement of lien filed in the firm name rather than the individual partners' names satisfies s.27 of The Mechanics' Lien Act (Alta.)
  2. 2 Whether a defect in naming the lienholder falls within the curative/substantial compliance provision s.28
  3. 3 Whether a $5,000 payment recorded in the claimant's books but not communicated to the debtor was properly applied to reduce the lien indebtedness

Ratio Decidendi

The Court allowed the appeal, holding that use of the firm name in the statement of lien was equivalent to naming the partners in the circumstances and, having caused no prejudice, the defect was cured by s.28; additionally the $5,000 payment recorded in the firm's books had not been communicated to the debtor and therefore could not be appropriated to reduce the lien, so the trial judgment was varied to increase the lien to $13,662.72.

Court Disposition

Appeal allowed; trial judgment restored as varied.

Orders

  • Allow appeal with costs throughout
  • Vary trial judgment by substituting $13,662.72 for $8,662.72 and adjust interest calculations accordingly