Kramer Ltd. v. Mooney, (2015) 477 Sask.R. 198 (QB)

• Judge: McMurtry, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: June 17, 2015
• Jurisdiction: Saskatchewan
• Citations: (2015), 477 Sask.R. 198 (QB);2015 SKQB 172

Kramer Ltd. v. Mooney (2015), 477 Sask.R. 198 (QB)

MLB headnote and full text

Temp. Cite: [2015] Sask.R. TBEd. JL.001

Kramer Ltd. (plaintiff/defendant by counterclaim) v. Dyon Mooney (defendant/plaintiff by counterclaim)

(2011 QBG No. 78; 2015 SKQB 172)

Indexed As: Kramer Ltd. v. Mooney

Saskatchewan Court of Queen's Bench

Judicial Centre of Melfort

McMurtry, J.

June 17, 2015.

Summary:

In June 2004, the plaintiff serviced a winch on a Caterpillar tractor owned by the defendant. The defendant paid the invoice but asserted that the winch was never operational after the repairs. In 2008, the plaintiff provided further services, parts and labour to the defendant. In 2009, the defendant delivered the winch to the plaintiff for repairs. It remained with the plaintiff and had no current value. The 2008 invoices totalled $5,039.03, which the defendant refused to pay. The plaintiff claimed for that amount and sought summary judgment. The defendant counterclaimed in breach of contract and negligence and claimed a set-off for the amount paid in 2004 ($6,137.99) for the defective work on the winch, a further $12,000 for the winch's value when delivered to the plaintiff in 2009 and for the ineffective 2009 repairs.

The Saskatchewan Court of Queen's Bench granted the plaintiff summary judgment in the amount of $5,908.17. Set-off did not apply. The counterclaim relating to the 2004 repairs was out of time. The defendant was denied leave to continue that action. As there was a separate cause of action regarding the 2009 events, that counterclaim could proceed. The plaintiff's request for solicitor and client costs was denied. The plaintiff was entitled to the usual party and party costs.

Limitation of Actions - Topic 2023

Actions in contract - Actions for breach of contract - When time commences to run - [See Limitation of Actions - Topic 3103 ].

Limitation of Actions - Topic 2025

Actions in contract - Actions for breach of contract - Fraudulent concealment - Effect of - [See Limitation of Actions - Topic 3103 ].

Limitation of Actions - Topic 3103

Actions in tort - Negligence - When time begins to run - In June 2004, the plaintiff serviced a winch on a Caterpillar tractor owned by the defendant - The defendant paid the invoice but asserted that the winch was never operational after the repairs - In 2008, the plaintiff provided further services, parts and labour to the defendant - In 2009, the defendant delivered the winch to the plaintiff for repairs - It remained with the plaintiff and had no current value - The 2008 invoices totalled $5,039.03, which the defendant refused to pay - The plaintiff claimed for that amount and sought summary judgment - The defendant counterclaimed in breach of contract and negligence for the amount paid in 2004 ($6,137.99) for the defective work on the winch, a further $12,000 for the winch's value when delivered to the plaintiff in 2009 and for the ineffective 2009 repairs - The Saskatchewan Court of Queen's Bench held that the counterclaim relating to the 2004 repairs was out of time - The six year limitation period applied - The defendant discovered the difficulties with the winch in June 2004 - The counterclaim was filed in May 2011 - The court rejected the defendant's assertion that the plaintiff's fraudulent concealment suspended the limitation period because the plaintiff's employees had made many promises over the years to fix the winch - The plaintiff had not concealed any "injury, loss or damage" from the defendant and had not misled the defendant as to the appropriateness of a proceeding - As there was a separate cause of action regarding the 2009 events, that counterclaim could proceed - See paragraphs 34 to 46.

Practice - Topic 1843

Pleadings - Counterclaim and set-off - Set-off - Circumstances when set-off can or cannot be claimed - [See Practice - Topic 5706 ].

Practice - Topic 1845

Pleadings - Counterclaim and set-off - Set-off - Requirement of mutuality - [See Practice - Topic 5706 ].

Practice - Topic 5701.1

Judgments and orders - Summary judgments - Debt or liquidated demand - [See Practice - Topic 5706 ].

Practice - Topic 5702

Judgments and orders - Summary judgments - Jurisdiction or when available or when appropriate - [See Practice - Topic 5706 ].

Practice - Topic 5706

Judgments and orders - Summary judgments - Counterclaim or set-off - In June 2004, the plaintiff serviced a winch on a Caterpillar tractor owned by the defendant - The defendant paid the invoice but asserted that the winch was never operational after the repairs - In 2008, the plaintiff provided further services, parts and labour to the defendant - In 2009, the defendant delivered the winch to the plaintiff for repairs - It remained with the plaintiff and had no current value - The 2008 invoices totalled $5,039.03, which the defendant refused to pay - The plaintiff claimed for that amount and sought summary judgment - The defendant counterclaimed in breach of contract and negligence and claimed a set-off under rule 3-47 for the amount paid in 2004 ($6,137.99) for the defective work on the winch, a further $12,000 for the winch's value when delivered to the plaintiff in 2009 and for the ineffective 2009 repairs - The Saskatchewan Court of Queen's Bench granted the plaintiff summary judgment in the amount of $5,908.17 - The defendant acknowledged the debt - Set-off did not apply because the 2008 invoices were "to purchase different goods, under a different contract, at a different time, from the same vendor" and, as such, were not closely linked to the 2004 or 2009 transactions - With no right to set off the counterclaim, the defendant was left with no defence to the plaintiff's claim - See paragraphs 15 to 33.

Practice - Topic 7454

Costs - Solicitor and client costs - Entitlement to solicitor and client costs - Improper, irresponsible or unconscionable conduct - [See Practice - Topic 7470.10 ].

Practice - Topic 7470.10

Costs - Solicitor and client costs - Entitlement to solicitor and client costs - Summary judgment proceedings - In June 2004, the plaintiff serviced a winch on a Caterpillar tractor owned by the defendant - The defendant paid the invoice but asserted that the winch was never operational after the repairs - In 2008, the plaintiff provided further services, parts and labour to the defendant - In 2009, the defendant delivered the winch to the plaintiff for repairs - It remained with the plaintiff and had no current value - The 2008 invoices totalled $5,039.03, which the defendant refused to pay - The plaintiff claimed for that amount and sought summary judgment and solicitor and client costs due to the defendant's failure to formally acknowledge that the winch repairs occurred in 2004, rather than in 2008 as set out in the defendant's pleadings, until examination for discovery - The Saskatchewan Court of Queen's Bench granted the plaintiff summary judgment but denied the request for solicitor and client costs - The circumstances did not warrant an extraordinary costs order - The date of repairs was not withheld from the plaintiff, but was in the plaintiff's own records - The plaintiff was entitled to the usual party and party costs - See paragraphs 48 and 49.

Counsel:

Ryan Kitzul, for the plaintiff (defendant by counterclaim);

Grant Carson, for the defendant (plaintiff by counterclaim).

This application was heard by McMurtry, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Melfort, who delivered the following judgment on June 17, 2015.