Permacrete Restoration Services Ltd. v. Myra

Permacrete Restoration Services Ltd. v. Myra

Liability was res judicata; the defects were non-structural (aesthetic) and repairable; reasonable measure of damages is cost to repair rather than replacement; the unsigned/perhaps undisclosed contract exclusion for freezing did not apply; the June 14, 1999 warranty applied; awarded repair allowance of $600 plus HST ($690), set off the $402.50 balance owing to claimant, declined costs and prejudgment interest, resulting in a net payment of $287.50 from Permacrete to Myra.

Citation
2005 NSSM 11
Parties
Claimant: Permacrete Restoration Services Limited; Defendant: Calvin Myra
Court
Nova Scotia Small Claims Court
Jurisdiction
Canada
Judgment Date
30 June 2005
Procedural Posture
Small Claims Court / Decision
Outcome
Judgment in part for Defendant/Counterclaim; Permacrete Restoration Services Limited ordered to pay Calvin Myra $287.50 net.
Legal Topics
Damages, Repair Versus Replacement, Warranty, Setoff, Costs Discretion, Res Judicata
Source Language
English
Contract Law Construction Law Remedies Civil Procedure Small Claims Damages Repair Versus Replacement Warranty +3 more

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Parties

Permacrete Restoration Services Limited

Claimant

Calvin Myra

Defendant

Procedural Posture

Small Claims Court / Decision

Legal Issues

  1. 1 Whether measure of damages is cost to repair or cost to replace
  2. 2 Whether the contract exclusion for freezing applied
  3. 3 Whether the written warranty applied

Ratio Decidendi

Liability was res judicata; the defects were non-structural (aesthetic) and repairable; reasonable measure of damages is cost to repair rather than replacement; the unsigned/perhaps undisclosed contract exclusion for freezing did not apply; the June 14, 1999 warranty applied; awarded repair allowance of $600 plus HST ($690), set off the $402.50 balance owing to claimant, declined costs and prejudgment interest, resulting in a net payment of $287.50 from Permacrete to Myra.

Court Disposition

Judgment in part for Defendant/Counterclaim; Permacrete Restoration Services Limited ordered to pay Calvin Myra $287.50 net.

Orders

  • Order 1: Defendant, Calvin Myra, to pay Claimant, Permacrete Restoration Services Limited, $402.50 (balance owing on contract) to be set off against amounts owed by Claimant.
  • Order 2: Claimant/Defendant by Counterclaim, Permacrete Restoration Services Limited, to pay to Calvin Myra the amount of $690.00 plus HST, subject to the setoff in Order 1.