Mailman v. Amirault

Mailman v. Amirault

Adjudicator found the defects were patent and the parties had agreed to specific holdbacks ($1,500 deficiency and $3,500 landscaping); absent a contractual obligation by the seller to perform additional repairs and given insufficient evidence of repair costs for most items, the claimants are entitled only to the agreed holdbacks plus court costs.

Citation
2011 NSSM 37
Parties
First Claimant: Lyle Mailman; Second Claimant: Nicole Amirault; Defendant: Trevor John Bezanson
Court
Nova Scotia Small Claims Court
Jurisdiction
Canada
Judgment Date
3 June 2011
Procedural Posture
Small Claims Court Real Property / Construction Defects / Final Decision (judgment)
Outcome
Judgment for Claimants in part; Defendant ordered to pay $5,179.36 to Claimants (holdbacks $1,500 and $3,500 plus court costs $179.36).
Legal Topics
Holdback, Deficiency List, Caveat Emptor, Breach of Contract, Mitigation of Damages, Builders' Lien Holdback, Quantum of Damages
Source Language
English
Real Property Contract Law Construction Defects Civil Procedure Consumer Protection Holdback Deficiency List Caveat Emptor +4 more

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Parties

Lyle Mailman

First Claimant

Nicole Amirault

Second Claimant

Trevor John Bezanson

Defendant

Procedural Posture

Small Claims Court Real Property / Construction Defects / Final Decision (judgment)

Legal Issues

  1. 1 Whether the defendant is liable for identified defects and incomplete work on the property
  2. 2 Whether claimants are limited to agreed holdback amounts for deficiencies
  3. 3 Whether the defects were latent or patent and effect of caveat emptor

Ratio Decidendi

Adjudicator found the defects were patent and the parties had agreed to specific holdbacks ($1,500 deficiency and $3,500 landscaping); absent a contractual obligation by the seller to perform additional repairs and given insufficient evidence of repair costs for most items, the claimants are entitled only to the agreed holdbacks plus court costs.

Court Disposition

Judgment for Claimants in part; Defendant ordered to pay $5,179.36 to Claimants (holdbacks $1,500 and $3,500 plus court costs $179.36).

Orders

  • Defendant pay Claimants $1500.00 (deficiency holdback)
  • Defendant pay Claimants $3500.00 (landscaping holdback)