April 1, 2009

Counterclaims and Setoffs still restricted in Builders’ Liens

Filed under: 1 — ruleswatch @ 6:45 am

Goodfellow J, in Concrete Shoring Technologies Inc. v. SCFS Inc. et al., 2009 NSSC 97 has confirmed that set offs and counterclaims in builders’ liens claims under the 1972 Rules must arise out of the “the contract or work done or materials furnished to the property in question as being between the parties to the original lien action.” [para 19]” The court applied a Rule 5.03 severance test to enter summary judgement for a lien claim and to allow a counter-claim for the alleged withholding of the defendant’s equipment by the claimant to continue as a separate claim. The decision affirmed the court’s conclusion in Boehner v. United Gulf Development 2004 NSSC 34 itself applying P.P.G. Industries Canada Limited v. J.W.
Lindsay Limited et al. (1982), 52 N.S.R. (2d) 267. The 1972 Rules were applied on the consensus of counsel and based on the date the application had been brought.


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