Modern Construction Ltd. et al. v. Moncton (City), (1970) 2 N.B.R.(2d) 442 (QB)

• Judge: Barry, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: February 26, 1970
• Jurisdiction: New Brunswick
• Citations: (1970), 2 N.B.R.(2d) 442 (QB)

Modern Constr. v. Moncton (1970), 2 N.B.R.(2d) 442 (QB);

    2 R.N.-B.(2e) 442

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Modern Construction Limited et al. v. City of Moncton

Indexed As: Modern Construction Ltd. et al. v. Moncton (City)

Répertorié: Modern Construction Ltd. et al. v. Moncton (City)

New Brunswick Court of Queen's Bench

Barry, J.

February 26, 1970.

Summary:

Résumé:

Plaintiff commenced action on a building contract for the balance due and certain extras arising out of a construction contract for a water supply pipeline for $2,796,000.

The judgment of the New Brunswick Court of Queen's Bench is set out in part and refers to the claim by the Building Contractor for a "holdback" of $229,000 plus interest. The holdback became due upon the issuance of the final certificate by the owner's engineer, which certificate was not issued.

The New Brunswick Court of Queen's Bench held that the owner waived the requirement of a final certificate where the owner instructed the engineer not to issue a certificate.

Also set out is a portion of the judgment of the New Brunswick Court of Queen's Bench dealing with one of the contractor's claims for "extras". During the construction of the water pipeline, a dispute arose as to the interpretation of certain clauses in the building contract and the Court held that in the absence of a work order from the engineer or a new agreement, the claim for "extras" by the contractor must be dismissed.

Building Contracts - Topic 5328

Architects and engineers - Certificates - Waiver of, by owner - Certificate of completion - Owner held to have waived requirement of final certificate from engineer before payment to contractor where owner instructed the engineer not to issue a certificate (New Brunswick Court of Queen's Bench).

Building Contracts - Topic 4602

Quantum meruit claims - Extras - What constitutes an extra - Claim by contractor for "extras" - Dispute as to interpretation of the building contract during construction - Whether additional work was an "extra" - The New Brunswick Court of Queen's Bench dismissed the claim.

Interest - Topic 3828

Statutory interest - On debts - Demand for interest - Demand made pursuant to section 44 of the Judicature Act - The New Brunswick Court of Queen's Bench awarded interest at 5% (compounded annually) pursuant to Interest Act.

Cases Noticed:

Brennan & Hollingworth v. City of Hamilton (1971), 37 D.L.R. 144, folld.

Peter Kiewit Sons' Company of Canada Ltd. et al. v. Eakins Construction Ltd. (1960), 22 D.L.R.(2d) 465 (S.C.C.), folld.

Dryden Construction Co. Ltd. v. H.E.P.C. of Ontario, [1960] S.C.R. 694, folld.

King v. Paradis etc., [1942] S.C.R. 10, folld.

Berlinquet v. The Queen, 13 S.C.R. 26, folld.

The Queen v. Starrs et al., 17 S.C.R. 118, folld.

Statutes Noticed:

Judicature Act, R.S.N.B. 1952, c. 120, sect. 44.

Interest Act, R.S.C. 1952, c. 156, sect. 3.

Counsel:

E.N. McKelvey, Q.C., Mark Yeoman and Douglas C. Ellsworth, for the plaintiff, Modern Construction Limited;

E.N. McKelvey, Q.C., and Robert Radford, for the plaintiff, The Bank of Montreal;

D.M. Gillis, Q.C., and Charles E. Leger, Q.C., for the defendant.

ACTION for money due arising out of work performed under a building contract.

Claim #1 - Holdback - $229,781.72 plus interest