Neonex Housing Industries Ltd. (now Neonex Canada Ltd.) v. American Building Co., (1981) 36 N.B.R.(2d) 305 (CA)

• Judge: Limerick, Ryan and Stratton, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: June 11, 1981
• Jurisdiction: New Brunswick
• Citations: (1981), 36 N.B.R.(2d) 305 (CA)

Neonex Housing v. Am. Building (1981), 36 N.B.R.(2d) 305 (CA);

    36 R.N.-B.(2e) 305; 94 A.P.R. 305

MLB headnote and full text

Sommaire et texte intégral

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Neonex Housing Industries Ltd. (now Neonex Canada Ltd.) v. American Building Company

(86/81/CA)

Indexed As: Neonex Housing Industries Ltd. (now Neonex Canada Ltd.) v. American Building Co.

Répertorié: Neonex Housing Industries Ltd. (now Neonex Canada Ltd.) v. American Building Co.

New Brunswick Court of Appeal

Limerick, Ryan and Stratton, JJ.A.

June 29, 1981.

Summary:

Résumé:

A New Brunswick company purchased a prefabricated building from an American manufacturer to be erected in this province for a second company. When the building collapsed, the second company sought to sue the manufacturer in New Brunswick. In December, 1980, the New Brunswick Court of Queen's Bench, Trial Division, made an ex parte order for service of a writ of summons ex juris.

On April 10, 1981, in a decision reported below at paragraphs 20 to 25, the New Brunswick Court of Queen's Bench, Trial Division, vacated the order for service ex juris. The intended plaintiff appealed.

The New Brunswick Court of Appeal dismissed the appeal.

A motion for leave to appeal to the Supreme Court of Canada was dismissed on October 10, 1981. See Bulletin of Proceedings taken in the Supreme Court of Canada, dated October 23, 1981, at page 3.

Practice - Topic 2567

Service of writ out of jurisdiction - Grounds for setting aside an order for service ex juris - The New Brunswick Court of Appeal affirmed the setting aside of an order for service of a writ of summons ex juris, where the endorsement on the writ did not disclose a cause of action based on a tort committed within the jurisdiction of the New Brunswick Court - See paragraphs 7 to 18.

Torts - Topic 4325

Suppliers of goods - Products liability - Negligence - Manufacturer - General - The New Brunswick Court of Appeal held that a manufacturer was liable to a third party consumer for negligence in manufacturing goods, where the consumer suffered personal injuries or damage to his other property, but not where the manufactured goods themselves were damaged and thereby caused economic loss, because that action was contractual, for breach of the express or implied warranty for fitness - See paragraphs 6 to 14.

Practice - Topic 3167

Appearances - Conditional appearances - General - The New Brunswick Court of Queen's Bench, Trial Division, held that a conditional appearance was proper and necessary in some circumstances, as where it expressly reserved the defendant's right to apply to vacate or set aside a document such as a writ of summons or a court order - See paragraphs 23 to 24.

Cases Noticed:

Rivtow Marine Ltd. v. Washington Iron Works, [1974] S.C.R. 1189, folld. [para. 7].

Grove Construction v. Alforge Metals Corp. Ltd. et al. (1978), 20 N.B.R.(2d) 204; 34 A.P.R. 204, folld. [para. 10].

Spencer v. Centurian Truck Equipment Limited (1978), 22 N.B.R.(2d) 23; 39 A.P.R. 23, folld. [para. 11].

The Brabo, [1949] A.C. 326, refd to. [para. 12].

Trans World Airlines Inc. and Curtis Wright Corporation (1955), 148 N.Y.S.(2nd) 284, refd to. [para. 13].

Irving Refining Ltd. v. Oil, Chemical and Atomic Workers et al. (1963), 6 N.B.R.(2d) 608, appld. [para. 24].

Counsel:

David H. Russell, for the plaintiff-appellant;

Frederick McElman, for the defendant-respondent.

This appeal was heard before LIMERICK, RYAN and STRATTON, JJ.A., of the New Brunswick Court of Appeal, at Fredericton, N.B., on June 11, 1981. The judgment of the New Brunswick Court of Appeal was delivered in English by LIMERICK, J.A., on June 29, 1981, the French translation of which is set out immediately following.