Fancy (B.F.) Const. Ltd. v. Alta Surety Co., (1991) 107 N.S.R.(2d) 152 (TD)

• Judge: Tidman, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: July 16, 1991
• Jurisdiction: Nova Scotia
• Citations: (1991), 107 N.S.R.(2d) 152 (TD)

Fancy Constr. Ltd. v. Alta Surety (1991), 107 N.S.R.(2d) 152 (TD);

  290 A.P.R. 152

MLB headnote and full text

B.F. Fancy Const. Limited (plaintiff) v. Alta Surety Company (defendant)

(S.H. No. 77622)

Indexed As: Fancy (B.F.) Const. Ltd. v. Alta Surety Co.

Nova Scotia Supreme Court

Trial Division

Tidman, J.

July 30, 1991.

Summary:

The plaintiff applied for summary judg­ment against the defendant.

The Nova Scotia Supreme Court, Trial Division, dismissed the application.

Building Contracts - Topic 7821

Labour and Material Payment Bonds - Liability of surety - General - [See Prac­tice - Topic 5708 ].

Practice - Topic 5703

Judgments and orders - Summary judg­ments - Conditions precedent - Proof of claim - [See Practice - Topic 5708 ].

Practice - Topic 5708

Judgments and orders - Summary judg­ments - Bars - Triable issues - The plaintiff subcontractor obtained default judg­ment against the contractor - The plaintiff applied for summary judgment against the defendant under a Labour and Material Payment Bond - The Nova Scotia Supreme Court, Trial Division, dismissed the application - The plaintiff failed to prove its claim - There was no proof that the work was performed or the material used in the performance of a contract between the contractor and the obligee in the Bond - Alternatively, there was a triable issue concerning liability under the Bond where the contractor defaulted in paying the plaintiff because it was not paid by the owner/obligee.

Cases Noticed:

Carl V. Potter Ltd. v. Antil Canada Ltd. et al. (1976), 15 N.S.R.(2d) 408; 14 A.P.R. 408 (C.A.), refd to. [para. 14].

Statutes Noticed:

Civil Procedure Rules (N.S.), rule 13 [para. 1].

Counsel:

Alan G. Hayman, Q.C., and M. Wood, for the plaintiff;

R.J. Ross Stinson and Geoffrey Saunders, for the defendant.

This application was heard on July 16, 1991, at Halifax, N.S., before Tidman, J., of the Nova Scotia Supreme Court, Trial Divi­sion, who delivered the following judgment orally on July 30, 1991.