Modern Construction Ltd. v. Moncton (City), (1972) 4 N.B.R.(2d) 666 (CA)

• Judge: Limerick, Hughes and Bugold, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: June 30, 1972
• Jurisdiction: New Brunswick
• Citations: (1972), 4 N.B.R.(2d) 666 (CA)

Modern Constr. v. Moncton (1972), 4 N.B.R.(2d) 666 (CA);

    4 R.N.-B.(2e) 666

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Modern Construction Ltd. v. City of Moncton

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

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

New Brunswick Court of Appeal

Limerick, Hughes and Bugold, JJ.A.

April 28, 1972.

Summary:

Résumé:

The New Brunswick Court of Appeal allowed the appeal and set aside a judgment of the New Brunswick Court of Queen's Bench in favour of a building contractor for $193,373 for the amount due under a building contract - see 2 N.B.R.(2d) 442. The plaintiff building contractor claimed pursuant to the provisions of a construction contract which provided for the construction of a water supply pipe line for the City of Moncton for $2,796,000.00. In accordance with the construction contract the engineer issued on June 16, 1966 a completion certificate. The contract provided for final payment by the owner 60 days after the issue of the completion certificate - the due date being August 16, 1966. The plaintiff building contractor commenced an action on August 12, 1966 for the amount of a holdback and for certain extras. The contract also provided:

"Before the amount certified in such Final Certificate is paid, the Contractor shall deposit with the Engineer a statutory declaration that all material and/or labour incorporated in the work has been fully paid for, and such declaration shall be attached to such Final Certificate."

The New Brunswick Court of Appeal held that on the date of the issue of the writ, August 12, 1966, that the cause of action for the hold back had not accrued and was premature because the 60 day period from the issuance of the completion certificate had not expired and because the contractor had not filed the required statutory declaration.

Building Contracts - Topic 3183

Actions against the owner - Practice - Commencement of action - Certificate of completion was not issued by engineer as required by the building contract - Action by building contractor was commenced prior to the due date of amounts claimed - The New Brunswick Court of Appeal set aside a judgment for $194,373 because the action was commenced prematurely.

Practice - Topic 54

Actions, commencement of - Preliminary matters - Action for debt - Premature issue of writ - Building contract - Action was commenced prior to due date of amounts claimed - The New Brunswick Court of Appeal set aside a judgment for $194,373 because action was commenced prematurely.

Cases Noticed:

Brennan & Hollingworth v. City of Hamilton (1917), 37 D.L.R. 144, folld.

Stornelli v. Dell Construction Co. Ltd. (1966), 57 D.L.R.(2d) 103 (Ont. H.C.), folld.

Eshelby v. Federated European Bank, Limited, [1932] 1 K.B. 254, folld.

Counsel:

William Hoyt, for the plaintiffs, appellants;

D.M. Gillis, Q.C., for the defendant, respondent.

Appeal from a judgment of Barry, J., February 26, 1970, 2 N.B.R.(2d) 442, in favour of a building contractor for a holdback due under a building contract.

Note that the Bulletin of the Supreme Court of Canada dated June 30, 1972 stated that a notice of appeal in this case had been filed with the Supreme Court of Canada.

BUGOLD, J.A., concurred with LIMERICK, J.A.