Fuller (Thomas) Construction Co. (1958) Ltd. v. Centennial Group of Companies Ltd. and Prince George Hotel Ltd., (1987) 80 N.S.R.(2d) 428 (CoCt)

• Case Date: August 28, 1987
• Jurisdiction: Nova Scotia
• Citations: (1987), 80 N.S.R.(2d) 428 (CoCt)

Fuller Constr. v. Centennial Group (1987), 80 N.S.R.(2d) 428 (CoCt);

    200 A.P.R. 428

MLB headnote and full text

Thomas Fuller Construction Company (1958) Limited, a body corporate (plaintiff) v. The Centennial Group of Companies Limited, a body corporate, and The Prince George Hotel Limited as General Partner of the Prince George Hotel Limited Partnership (defendants) and Consolidated Aluminum & Glass Corporation, a body corporate, The Canadian Surety Company, a body corporate, Sulya Masonry Contractors (1981) Limited, a body corporate, B.A.B. Welding (1984) Limited, a body corporate, The Guaranty Company of North America, a body corporate, and Eastern Drywall Acoustics Limited, a body corporate (third parties)

Consolidated Aluminum & Glass Corporation (plaintiff) v. Thomas Fuller Construction Co. (1958) Limited, and The Prince George Hotel Limited Partnership, and the Prince George Hotel Limited, as General Partner of the Limited Partnership (defendants)

Thomas Fuller Construction Co. (1958) Limited (plaintiff by counterclaim) v. Consolidated Aluminum & Glass Corporation, a body corporate, and The Canadian Surety Company, a body corporate (defendants by counterclaim)

(C.H. 53906)

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

Nova Scotia County Court

District Number One

Palmeter, C.J.C.C.

August 28, 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 dismissed the application and ruled that both the counterclaim and the third party claim against Canadian Surety related to the mechanics' lien actions.

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 County Court ruled that both the counterclaim and the third party claim related to the mechanics' lien actions and were within its jurisdiction - See paragraphs 11 to 40.

Mechanics' Liens - Topic 8136

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

Practice - Topic 5261

Trials - General - Trial of preliminary issues - Issues of law - The general contractor on a building project in the context of its own and subcontractors' mechanics' lien actions counterclaimed against and added as third party the bondsman of a subcontractor - The bondsman applied for a stay of proceeding against it on the ground that the counterclaim and third party action were outside the scope of the mechanics' lien actions - The Nova Scotia County Court held that under the wide discretion in rule 25.01(1)(a) of the Civil Procedure Rules the jurisdictional issue should be decided prior to trial, not withstanding the lack of an agreed statement of facts - See paragraphs 8 to 10.

Cases Noticed:

Curry v. Daigie (1984), 62 N.S.R.(2d) 416; 136 A.P.R. 416, consd. [para. 8].

Seacoast v. MacLean (1986), 75 N.S.R.(2d) 70; 186 A.P.R. 70, consd. [para. 8].

Fulton v. Pinegrove Women's Institute (1984), 64 N.S.R.(2d) 98; 143 A.P.R. 98, consd. [para. 8].

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, appld. [para. 12].

Cronkhite v. Workers' Compensation Board (1976), 1 B.C.L.R. 142, consd. [para. 33].

Statutes Noticed:

Civil Procedure Rules (N.S.), rule 11.05(a), rule 17.06(1)(e), rule 17.06(1)(g), rule 25.01(1)(a) [para. 6].

County Court Act, R.S.N.S. 1967, c. 64, sect. 33(1A) [para. 22]; sect. 34(1) [paras. 10, 24]; sect. 40 [paras. 18, 40]; sect. 43 [para. 6].

Authors and Works Noticed:

Black's Law Dictionary (5th Ed.) [para. 27].

Counsel:

Michael Ryan, Q.C., and Michael E. Dunphy, for the applicant Canadian Surety Company;

Alexander S. Beveridge and A. Mark David, for the respondent Thomas Fuller Construction Company (1958) Limited.

This case was heard at Halifax, Nova Scotia, before Palmeter, C.J.C.C., of the Nova Scotia County Court, District Number One, who delivered the following judgment on August 28, 1987: