Fuller (Thomas) Construction Co. (1958) Ltd. v. Centennial Group of Companies Ltd. and Prince George Hotel Ltd., (1987) 82 N.S.R.(2d) 73 (CA)

• Judge: Clarke, C.J.N.S., Hart and Chipman, JJ.A.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: December 02, 1987
• Jurisdiction: Nova Scotia
• Citations: (1987), 82 N.S.R.(2d) 73 (CA)

Fuller Constr. v. Centennial Group (1987), 82 N.S.R.(2d) 73 (CA);

    207 A.P.R. 73

MLB headnote and full text

The Canadian Surety Company (appellant) v. Thomas Fuller Construction Company (1958) Limited (respondent)

(S.C.A. 01870)

Indexed As: Fuller (Thomas) Construction Co. (1958) Ltd. v. Centennial Group of Companies Ltd. and Prince George Hotel Ltd.

Nova Scotia Supreme Court

Appeal Division

Clarke, C.J.N.S., Hart and Chipman, JJ.A.

December 2, 1987

Summary:

Canadian Surety Company issued a bond securing performance of a subcontractor's work on a building project. The subcontractor filed a lien and brought an action against the general contractor, which added Canadian Surety as a defendant to its counterclaim against the subcontractor. The general contractor also brought a mechanics' lien action against the owners, who counterclaimed against the general contractor for damages for delay and defective work. The general contractor added the subcontractor and Canadian Surety as third parties. Canadian Surety applied to stay the counterclaim and third party action against it.

The Nova Scotia County Court, in a judgment reported 80 N.S.R.(2d) 428; 200 A.P.R. 428, dismissed the application and ruled that both the counterclaim and the third party claim against Canadian Surety related to the mechanics' lien actions. Canadian Surety appealed.

The Nova Scotia Supreme Court, Appeal Division, dismissed the appeal.

Mechanics' Liens - Topic 8008

Practice - General - Availability of set-off, counterclaim and third party procedure - Canadian Surety Company issued a bond securing performance of a subcontractor's work on a building project - The subcontractor filed a lien and brought an action against the general contractor, which added Canadian Surety as a defendant to its counterclaim against the subcontractor - The general contractor also brought a mechanics' lien action against the owners, who counterclaimed against the general contractor for damages for delay and defective work - The general contractor added the subcontractor and Canadian Surety as third parties - Canadian Surety applied to stay the counterclaim and third party action against it on the ground that they were outside the scope of the mechanics' lien actions - The Nova Scotia Court of Appeal affirmed that both the counterclaim and the third party claim related to the mechanics' lien actions and were within the jurisdiction of the County Court.

Mechanics' Liens - Topic 8136

Practice - Parties - Proper parties - Sureties - Bondsmen - [See Mechanics' Liens - Topic 8008 above].

Cases Noticed:

P.P.G. Industries Canada Limited v. J.W. Lindsay Enterprises Limited et al. (1982), 52 N.S.R.(2d) 267; 106 A.P.R. 267, refd to. [para. 4].

Statutes Noticed:

Mechanics' Lien Act, R.S.N.S. 1967, c. 178, sect. 33(1) [para. 6].

Counsel:

Michael S. Ryan, Q.C., for the appellant;

A. William Moreira and Mark David, for the respondent.

This appeal was heard on December 2, 1987, before Clarke, C.J.N.S., Hart and Chipman, JJ.A., of the Nova Scotia Supreme Court, Appeal Division.

On December 2, 1987, Clarke, C.J.N.S., delivered the following judgment orally for the Court of Appeal.