O'Byrne v. 1085043 Ontario Inc. (Receivership) et al., (1997) 33 O.T.C. 311 (GD)

• Judge: Chadwick, J.
• Court: Ontario Court of Justice General Division (Canada)
• Case Date: June 20, 1997
• Jurisdiction: Ontario
• Citations: (1997), 33 O.T.C. 311 (GD)

O'Byrne v. 1085043 Ont. (1997), 33 O.T.C. 311 (GD)

MLB headnote and full text

Temp. Cite: [1997] O.T.C. TBEd. JN.169

Angus O'Byrne (plaintiff) v. 1085043 Ontario Inc., BDO Dunwoody Limited, Interim Receiver of the property of 1085043 Ontario Inc., Louise Desjardins, Elizabeth Virgint, Ernie Virgint and William Kerr (defendants)

(File No. 97-CV-628 CM)

Indexed As: O'Byrne v. 1085043 Ontario Inc. (Receivership) et al.

Ontario Court of Justice

General Division

Chadwick, J.

June 20, 1997.

Summary:

The plaintiff sold land to a corporate purchaser, who intended to build a golf course. The plaintiff received a small down payment and no other security other than some of the purchaser's shares being held in trust for him. The plaintiff never registered his vendor's lien. The purchaser mortgaged the property to finance golf course construction. A number of liens were registered for unpaid construction costs. The lien claimants brought an action and the land was sold. The plaintiff sought a vendor's lien and claimed priority over the lien claimants.

The Ontario Court (General Division) held that the plaintiff, as an unpaid vendor, had an equitable lien for the balance of the purchase price. However, where the plaintiff's vendor's lien was unregistered and the lien claimants had no notice, the combination of the Registry Act (ss. 71, 72), the Construction Lien Act (ss. 78(1), 78(3)), the Land Registration Reform Act (s. 5(1)) and the Conveyancing and Law of Property Act (s. 7), clearly gave the lien claimants priority over the unregistered vendor's lien.

Mechanics' Liens - Topic 6391

Priorities - Particular claims - Vendor's lien - See paragraphs 1 to 31.

Real Property - Topic 7968

Title - Registration of instruments - Priorities - Equitable interests - See paragraphs 1 to 31.

Sale of Land - Topic 7792

Remedies of vendor - Vendor's lien - Enforcement of - See paragraphs 1 to 31.

Statutes Noticed:

Construction Lien Act, R.S.O. 1990, c. C-30, sect. 78(1), sect. 78(3) [para. 27].

Conveyancing and Law of Property Act, R.S.O. 1990, c. C-34, sect. 7 [para. 30].

Land Registration Reform Act, R.S.O. 1990, c. L-4, sect. 5(1) [para. 29].

Registry Act, R.S.O. 1990, c. R-20, sect. 71, sect. 72 [para. 26].

Counsel:

Anna E. Sundin, for the plaintiff;

Ronald W. Price and John Callan, for the lien claimants;

Craig M. Bater, for Louise Desjardins, Elizabeth Virgint, Ernie Virgint and William Kerr;

Rick Brooks, for BDO Dunwoody Ltd.

This motion was heard before Chadwick, J., of the Ontario Court (General Division), whose following judgment was released on June 20, 1997.