Lee v. Lincoln Construction Ltd. and Toulon Development (St. John's) Ltd., (1973) 4 Nfld. & P.E.I.R. 116 (NFSC)

• Judge: Puddester, J.
• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: February 19, 1973
• Jurisdiction: Newfoundland and Labrador
• Citations: (1973), 4 Nfld. & P.E.I.R. 116 (NFSC)

Lee v. Lincoln Constr. Ltd. (1973), 4 Nfld. & P.E.I.R. 116 (NFSC)

MLB headnote and full text

Lee v. Lincoln Construction Limited and Toulon Development (St. John's) Limited

Indexed As: Lee v. Lincoln Construction Ltd. and Toulon Development (St. John's) Ltd.

Newfoundland Supreme Court

At Trial

Puddester, J.

February 19, 1973.

Summary:

This action arose out of the general contract for the construction of a shopping mall complex. The developer contracted with the general contractor for the construction of the complex. The general contractor subcontracted with the plaintiff for the landscaping of the property. When the plaintiff was not paid, he brought a mechanics' lien action against the developer as owner and the general contractor. The Supreme Court discharged the plaintiff's claim for lien against the property but allowed the plaintiff's action against the general contractor for the price of work completed under the landscaping contract in the amount of $3,478.50. The Supreme Court held that, since the landscaping was not done "upon the construction, alteration or repair" of the building itself within the meaning of section 4 and 5(1) of the Mechanics' Lien Act, no lien could attach to the building or land.

The Supreme Court held that, since the developer had never accepted the landscaping done by the plaintiff as conforming to the general contract specifications, the developer was not liable to the plaintiff or the general contractor for the price of the landscaping.

Mechanics' Liens - Topic 4100

Lienable claims - Landscaping - Claimant subcontractor provided materials and labour for landscaping of new shopping mall - Newfoundland Supreme Court held claimant not entitled to mechanics' lien on mall property - Paragraphs 17 to 26.

Cases Noticed:

Sloan v. Wasson, [1923] 2 W.W.R. 506, folld.

Stuckey v. George, [1924] 1 W.W.R. 1193, dist.

Farr v. Groat, [1913] 4 W.W.R. 1097 (Alta.) dist.

Beseloff v. White (1915), 23 D.L.R. 676 (B.C.), dist.

Statutes Noticed:

Mechanics' Lien Act, R.S. Nfld. 1952, c. 263, sect. 4, sect. 5(1).

Counsel:

Douglas Cook, for the plaintiff;

P. Althouse, for Lincoln Construction Limited;

A.D. Pike, for Toulon Development (St. John's) Limited.