101028589 Saskatchewan Ltd. v. Sunland Development Corp. et al., (2002) 228 Sask.R. 270 (QB)

• Judge: Foley, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: October 09, 2002
• Jurisdiction: Saskatchewan
• Citations: (2002), 228 Sask.R. 270 (QB);2002 SKQB 401

101028589 Sask. Ltd. v. Sunland Dev. (2002), 228 Sask.R. 270 (QB)

MLB headnote and full text

Temp. Cite: [2002] Sask.R. TBEd. OC.055

101028589 Saskatchewan Ltd. (plaintiff) v. Sunland Development Corp., 621884 Saskatchewan Ltd., Jeld-Wen of Canada Ltd., formerly Willmar Windows Ltd., 627392 Saskatchewan Ltd., Peter Turanich, Insulpro Industries Inc., Nu-Fab Building Products Ltd., Les Horseman and Kindrachuk Agrey Architects Ltd. (defendants/respondents) and Lewko Electric (1996) Ltd., M.D. Mechanical Ltd. and 101011619 Saskatchewan Ltd. (respondents)

(2001 Q.B.G. No. 1814; 2002 SKQB 401)

Indexed As: 101028589 Saskatchewan Ltd. v. Sunland Development Corp. et al.

Saskatchewan Court of Queen's Bench

Judicial Centre of Saskatoon

Foley, J.

October 9, 2002.

Summary:

The assignee of a mortgagee applied for payment out of court of fire insurance proceeds. A lienholder opposed payment out on the basis that the insurance proceeds fell within the lien and trust provisions of the Builders' Lien Act (Sask.).

The Saskatchewan Court of Queen's Bench dismissed the application.

Mechanics' Liens - Topic 7664

Trust fund - Trust fund (fire insurance proceeds) - Who may claim against - The assignee of a mortgagee applied for payment out of court of fire insurance proceeds - A lienholder opposed payment out on the basis that the insurance proceeds fell within the lien and trust provisions of the Builders' Lien Act (Sask.) - The Saskatchewan Court of Queen's Bench dismissed the application - The applicant, now in the position of mortgagee, became a statutory trustee of the insurance proceeds which were subject to the priority provisions of the Act - Until such time as the priorities between owner, mortgagee and lien claimants were determined and resolved, it could not be said that one or more than one of them were the persons entitled to receive the payment out of court.

Practice - Topic 3260

Payment of money into court - General principles - Payment out of court - Person entitled to - [See Mechanics' Liens - Topic 7664 ].

Cases Noticed:

Shinkaruk Enterprises Ltd. and Mr. Klean Enterprises Ltd. v. Commonwealth Insurance Co. et al. (1986), 49 Sask.R. 61 (Q.B.), consd. [para. 8].

Battersby v. Lenhoco Enterprises Ltd. et al., [1980] 3 W.W.R. 56; 3 Sask.R. 112 (C.A.), refd to. [para. 9].

Metro Electrical Contractors Ltd. v. Poorman et al. [1988] 2 W.W.R. 163; 64 Sask.R. 263 (Q.B.), refd to. [para. 15].

Ponto (Alan) Masonry Ltd. v. Sikorski et al., [1983] 6 W.W.R. 270; 28 Sask.R. 11 (Q.B.), refd to. [para. 15].

Statutes Noticed:

Builders' Lien Act, S.S. 1984-85-86, c. B-7.1, sect. 9, sect. 77 [para. 12].

Rules of Court (Sask.), Queen's Bench Rules, rule 180D, rule 180E [para. 6]

Queen's Bench Rules (Sask.) - see Rules of Court (Sask.), Queen's Bench Rules.

Counsel:

G.A. Richards, for the plaintiff;

G.A.T. Meschishnick, for the respondent 101011619;

W.B. Gough, for the defendant Kindrachuk Agrey Architects Ltd.

Foley, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Saskatoon, heard this application, and delivered the following judgment on October 9, 2002.