Select Ceramic Tile Centre Inc. v. Qualtech Building Solutions; Install A Flor Ltd. v. Dean; Kent Building Supplies v. Dean; Genuine Exteriors Ltd. v. Qualtech Building Solutions

Select Ceramic Tile Centre Inc. v. Qualtech Building Solutions; Install A Flor Ltd. v. Dean; Kent Building Supplies v. Dean; Genuine Exteriors Ltd. v. Qualtech Building Solutions

Where a fixed contract price exists and the owner has retained 10% of amounts paid to the contractor, the owner may rely on the contract price (inclusive of HST as claimed) to calculate the statutory holdback; the applicant's evidence that nothing further is owing to the contractor and that Qualtech and its receiver have settled supports allowing payment of the calculated holdback into court and vacating liens absent evidence from claimants establishing a contrary value.

Citation
2006 NSSC 300
Parties
Plaintiff: Select Ceramic Tile Centre Incorporated; Defendant/contractor: Qualtech Building Solutions Limited; Owners/applicants/defendants: Jonathan G. Dean and Miriam Lynn Dean; Plaintiff: Install A-Flor Limited; Plaintiff: Expert Electric & Alarm Limited; Plaintiff: Dynamic Glass and Upholstery; Plaintiff: Kent Building Supplies (a division of J.D. Irving Limited); Plaintiff: Genuine Exteriors Limited; Interested Party/self Represented: Eastwing Products Limited
Court
Supreme Court of Nova Scotia
Jurisdiction
Canada
Judgment Date
16 October 2006
Procedural Posture
Builders' Lien Act Application / Application for Payment Into Court/security for Release of Liens
Outcome
Application granted; owners' calculation of 10% holdback on contract price accepted and payment into court permitted.
Legal Topics
Builders' Lien, Holdback Calculation, Payment Into Court, Statutory Interpretation, Priority of Subcontractor Claims
Source Language
English
Construction Law Property Law Bankruptcy/receivership Civil Procedure Builders' Lien Holdback Calculation Payment Into Court Statutory Interpretation +1 more

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Parties

Select Ceramic Tile Centre Incorporated

Plaintiff

Qualtech Building Solutions Limited

Defendant/contractor

Jonathan G. Dean and Miriam Lynn Dean

Owners/applicants/defendants

Install A-Flor Limited

Plaintiff

Expert Electric & Alarm Limited

Plaintiff

Dynamic Glass and Upholstery

Plaintiff

Kent Building Supplies (a division of J.D. Irving Limited)

Plaintiff

Genuine Exteriors Limited

Plaintiff

Eastwing Products Limited

Interested Party/self Represented

Procedural Posture

Builders' Lien Act Application / Application for Payment Into Court/security for Release of Liens

Legal Issues

  1. 1 Whether owner may calculate the 10% statutory holdback on the contract price inclusive of HST
  2. 2 Whether the evidence provided by the owners was sufficient to justify payment into court and vacating liens
  3. 3 Whether owners are required to determine actual value of each subcontractor's work or prior payments by the contractor

Ratio Decidendi

Where a fixed contract price exists and the owner has retained 10% of amounts paid to the contractor, the owner may rely on the contract price (inclusive of HST as claimed) to calculate the statutory holdback; the applicant's evidence that nothing further is owing to the contractor and that Qualtech and its receiver have settled supports allowing payment of the calculated holdback into court and vacating liens absent evidence from claimants establishing a contrary value.

Court Disposition

Application granted; owners' calculation of 10% holdback on contract price accepted and payment into court permitted.

Orders

  • Owners to pay $51,994.28 into court as security (10% holdback based on contract price)
  • Registration of liens to be vacated upon payment of the security into court