A.L. Gullison & Sons Ltd. v. Corey; Corey v. A.L. Gullison & Sons Ltd., (1979) 24 N.B.R.(2d) 638 (QB)

• Judge: Stevenson, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: February 05, 1979
• Jurisdiction: New Brunswick
• Citations: (1979), 24 N.B.R.(2d) 638 (QB)

Gullison & Sons Ltd. v. Corey (1979), 24 N.B.R.(2d) 638 (QB);

    24 R.N.-B.(2e) 638; 48 A.P.R. 638

MLB headnote and full text

Sommaire et texte intégral

A.L. Gullison & Sons Ltd. v. Corey

Corey v. A.L. Gullison & Sons Ltd.

Indexed As: A.L. Gullison & Sons Ltd. v. Corey; Corey v. A.L. Gullison & Sons Ltd.

Répertorié: A.L. Gullison & Sons Ltd. v. Corey; Corey v. A.L. Gullison & Sons Ltd.

New Brunswick Court of Queen's Bench

Stevenson, J.

February 5, 1979.

Summary:

Résumé:

This case arose out of a building contractors mechanics' lien claim against the owner of a new house. The owner took the contractor to see a house which she liked. The owner purchased what she believed were the plans for the house and contracted with the contractor for its construction. When the house as constructed from the plans turned out to be different from the house which was to be duplicated, the owner at first accepted the situation, but then ordered the contractor off the job. The contractor brought a mechanics' lien action against the owner.

The New Brunswick Court of Queen's Bench allowed the contractor's claim.

Deeds and Documents - Topic 5057

Rectification - When available - Mistake - The owner of a house under construction and the builder both mistakenly believed that the plan being used in construction would produce a house of certain dimensions - When it was discovered that the plan was not producing the house envisaged, the owner accepted the house as it was - The New Brunswick Court of Queen's Bench held that, where the owner had accepted the house, rectification of the building contract was not available - See paragraph 14.

Interest - Topic 4004

Statutory interest - Mechanics' Liens - The New Brunswick Court of Queen's Bench refused to award a builder interest on his Mechanics' Liens claim, where the building contract contained no provision for interest - See paragraph 15.

Mistake - Topic 684

Mistakable quality - Mutual or common mistake - The owner and the builder of a house under construction both mistakenly believed that the plan being used in construction would produce a house of certain dimensions - When it was discovered that the plan was not producing the house envisaged, the owner accepted the house as it was - The New Brunswick Court of Queen's Bench held that, where both parties agreed upon the basic subject matter of the building contract, the mutual mistake about the quality of the house was not sufficient to render the contract void - See paragraphs 1 to 14.

Cases Noticed:

Brunswick Construction Ltée v. Villa des Jardins Inc. (1977), 17 N.B.R.(2d) 107; 23 A.P.R. 107, appld. [para. 15].

Statutes Noticed:

Mechanics' Liens Act, R.S.N.B. 1973, c. M-6, sect. 47 [para. 15].

Authors and Works Noticed:

Hudson, Building and Engineering Contracts (9th Ed.), p. 21 [para. 11].

Counsel:

D. Leslie Smith, for A.L. Gullison & Sons Ltd;

Brian R. Warnock, for Alice E. Corey;

Allen M. Ruben, for Kinross Mortgage Corporation.

This case was heard on November 1-3, 1978, and January 9 and 10, 1979, at Fredericton, N.B., before STEVENSON, J., of the New Brunswick Supreme Court, Queen's Bench Division.

On February 5, 1979, STEVENSON, J., delivered the following judgment: