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The Court of Appeal held it lacked jurisdiction over an appeal about a construction lien discharge and transferred the matter to the Divisional Court.
The Court of Appeal held that a later payment-forbearance agreement did not remove Fairway from the class of lien claimants covered by s. 23 of the Builders Lien Act.
The court held the builders lien was filed outside the 45-day limit after termination of the head contract, discharged the lien, and cancelled the CPL.
The court held the plaintiffâs builders lien was filed out of time, discharged it against funds paid into court, ordered rateable distribution, and imposed costs and a $3,000 penalty.
No contract existed; the defendant performed work but diminished value and the defendant allowed its lien rights to lapse and then used the stale lien to extract payment; given the improper use of the lien and the equitable factors, claimant should not be required to pay and the payment made under protest must be returned, with judgment for the payment and claim issuance costs.
Source excerpt
Phase I was developed, lots sold and occupied and is separate and severable from Phase II; the work performed in Phase II was not essential to Phase I and did not make Phase I 'land enjoyed therewith'; therefore the respondent's mechanics' lien does not extend to Phase I and that portion of the lien is discharged.
Source excerpt
The court held that payment into court under s. 23 of the Builders Lien Act discharged the liens without any extra security for costs.
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