Narduzzi v. Richardson

Narduzzi v. Richardson

Marshallling was not available because, although marshalling may in principle be invoked by a builders lien claimant, the Mortgage had been discharged against West Third so there were not two funds in existence or at the debtor's disposal when marshalling was raised; further, the sum secured by the Mortgage ($307,054.49) was established to have been secured in good faith at the time of the advances under s.32(1) of the Builders Lien Act, and therefore those funds (and accrued interest and charges) can be released from trust to Towerville.

Citation
2009 BCSC 588
Parties
Plaintiff: James Bruce Narduzzi dba Ultimate Construction; Defendant: David Richardson
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
15 May 2009
Procedural Posture
Builders Lien Act Action / Chambers Application for Release of Sale Proceeds Held in Trust
Outcome
Application granted: trust funds may be released to Towerville as the mortgage debt is secured in good faith; defendant awarded costs
Legal Topics
Marshalling, Lien Priority, Good Faith of Mortgage, Discharge of Mortgage, Assignment of Mortgage, Release of Trust Funds
Source Language
English
Builders Lien Act Property Equity Mortgages Real Property Civil Procedure Marshalling Lien Priority +4 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Legal principles 4 Authorities cited 13 Party arguments 2 Amounts and remedies 9
Sign in to unlock

Parties

James Bruce Narduzzi dba Ultimate Construction

Plaintiff

David Richardson

Defendant

Procedural Posture

Builders Lien Act Action / Chambers Application for Release of Sale Proceeds Held in Trust

Legal Issues

  1. 1 Whether the doctrine of marshalling can be invoked by a builders lien claimant
  2. 2 Whether marshalling applies where a mortgage has been discharged against one of two properties so that there are not two funds in existence
  3. 3 Whether the registered mortgage was secured in good faith within the meaning of s.32(1) of the Builders Lien Act and thus has priority over the builders lien

Ratio Decidendi

Marshallling was not available because, although marshalling may in principle be invoked by a builders lien claimant, the Mortgage had been discharged against West Third so there were not two funds in existence or at the debtor's disposal when marshalling was raised; further, the sum secured by the Mortgage ($307,054.49) was established to have been secured in good faith at the time of the advances under s.32(1) of the Builders Lien Act, and therefore those funds (and accrued interest and charges) can be released from trust to Towerville.

Court Disposition

Application granted: trust funds may be released to Towerville as the mortgage debt is secured in good faith; defendant awarded costs

Orders

  • Law firm holding sale proceeds authorized to pay Towerville Properties Ltd. the sum of 307054.49 and any further interest and other amounts charged under the Mortgage from the trust
  • Defendant David Richardson entitled to his costs of this application