Kelly-Massey v. Austin Contracting Ltd.

Kelly-Massey v. Austin Contracting Ltd.

Court found no evidence that the windows or doors were defective within the two-year manufacturer warranty or that the defendant proved invoices related to the relevant period. Defendant paid a repairer $600 and was not reimbursed by the manufacturer, so that cost was chargeable against the funds. Therefore the claimants are entitled to the funds held less the proven repair cost, plus statutory court and service costs as ordered.

Citation
2012 NSSM 34
Parties
Claimant: Deanna Kelly-Massey; Claimant: Lynda Kelly; Defendant: Austin Contracting Limited
Court
Nova Scotia Small Claims Court
Jurisdiction
Canada
Judgment Date
16 July 2012
Procedural Posture
Small Claims Court / Decision (post Hearing)
Outcome
Judgment for claimants; defendant ordered to pay the claimants the sums set out in the decision
Legal Topics
Breach of Contract, Warranty, Payment of Trust Funds, Set Off, Evidence
Source Language
English
Contract Real Property Construction Law Trust Breach of Contract Warranty Payment of Trust Funds Set Off +1 more

Case Brief

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Parties

Deanna Kelly-Massey

Claimant

Lynda Kelly

Claimant

Austin Contracting Limited

Defendant

Procedural Posture

Small Claims Court / Decision (post Hearing)

Legal Issues

  1. 1 Whether the remaining funds held as security for warranty ($11,484.98) should be paid to the claimants
  2. 2 Whether the defendant proved defects within the two-year warranty period that would justify withholding funds or offsetting costs
  3. 3 Whether invoices relied on by defendant were properly connected to the windows and doors and to the relevant time period

Ratio Decidendi

Court found no evidence that the windows or doors were defective within the two-year manufacturer warranty or that the defendant proved invoices related to the relevant period. Defendant paid a repairer $600 and was not reimbursed by the manufacturer, so that cost was chargeable against the funds. Therefore the claimants are entitled to the funds held less the proven repair cost, plus statutory court and service costs as ordered.

Court Disposition

Judgment for claimants; defendant ordered to pay the claimants the sums set out in the decision

Orders

  • Defendant to pay the claimants $11,484.98
  • Less $670.00 Grant Boutilier costs to the defendant