Kelly v. Progressive Builders Ltd., (1970) 1 Nfld. & P.E.I.R. 1 (NFTD)

• Judge: Puddester, J.
• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: February 18, 1970
• Jurisdiction: Newfoundland and Labrador
• Citations: (1970), 1 Nfld. & P.E.I.R. 1 (NFTD)

Kelly v. Progressive Builders (1970), 1 Nfld. & P.E.I.R. 1 (NFTD)

MLB headnote and full text

Kelly v. Progressive Builders Limited

Indexed As: Kelly v. Progressive Builders Ltd.

Newfoundland Supreme Court

Trial Division

Puddester, J.

February 18, 1970.

Summary:

Trial Court declared invalid a claim for a mechanics' lien where the owner conveyed the land improved to a bona fide purchaser prior to registration of the mechanics' lien. In addition, the Court stated a mechanics' lien cannot attach to money representing the proceeds of sale of the land improved.

Trial Court granted the application of a judgment creditor and held that the judgment creditor of the seller of the improved land was entitled to the money representing the proceeds of sale where the judgment-creditor had given a writ of fieri facias to the Sheriff and the Sheriff had issued a warrant and given it to the judgment-debtor. The Court stated that it was immaterial that the money was not given to the Sheriff but was paid into court.

In obiter dictum the Court stated that a default judgment can be taken in a mechanics' lien action in Newfoundland.

Execution - Topic 1055

Practice - Writ of fieri facias - Issue, filing and delivery - When writ executed - Court held writ of fieri facias was executed when writ was given to sheriff and warrant issued and given to judgment debtor which had the effect of attaching money in defendant's hands - The Newfoundland Supreme Court, Trial Division, held that it is immaterial that money in defendant's hands was not turned over to sheriff.

Mechanics' Liens - Topic 204

Lienable interest - Money, generally - Mechanics' lien cannot attach to money since it is not "estate or interest" in property under section 5(1) of the Mechanics' Lien Act - (Newfoundland Supreme Court, Trial Division).

Mechanics' Liens - Topic 304

Lienable interest - Agreements for sale - Bona fide purchasers - Mechanics' lien cannot be registered so as to attach to realty after sale of realty to a bona fide purchaser who is not an "owner" under the Mechanics' Lien Act - (Newfoundland Supreme Court, Trial Division).

Mechanics' Liens - Topic 8204

Practice - Default judgments - Obiter dictum - Default judgment may be taken in Mechanics' Lien Action - (Newfoundland Supreme Court, Trial Division).

Cases Noticed:

George Taylor Hardware Limited v. Balzer et al, [1967] 2 O.R. 306, folld.

Janes v. Chaffey, [1932-35] N.L.R. 116, folld.

Elliott v. Rowell (1916), 11 O.W.N. 203, dist.

Statutes Noticed:

Mechanics' Lien Act, R.S.N. 1952, c. 263, sect. 5(1).

Rules of Court, Order 38, rule 18.

Counsel:

D. Riche, for the judgment creditor;

S. Hawkins, Q.C., for Harvey Lumber and Hardware Limited;

P.D. Lewis, Q.C., for Progressive Builders Limited et al;

D. Martin, for Steers Limited.