Park Fuels Ltd. v. Fundy Solid Surfacing Inc., 2004 NBQB 165

• Judge: Glennie, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: March 19, 2004
• Jurisdiction: New Brunswick
• Citations: 2004 NBQB 165;(2004), 275 N.B.R.(2d) 12 (TD)

Park Fuels v. Fundy Solid (2004), 275 N.B.R.(2d) 12 (TD);

    275 R.N.-B.(2e) 12; 722 A.P.R. 12

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[French language version follows English language version]

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

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Temp. Cite: [2004] N.B.R.(2d) TBEd. AP.041

Park Fuels Ltd. (plaintiff) v. Fundy Solid Surfacing Inc. (defendant)

(S/C/503/03; 2004 NBQB 165)

Indexed As: Park Fuels Ltd. v. Fundy Solid Surfacing Inc.

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Saint John

Glennie, J.

March 19, 2004.

Summary:

The plaintiff in a mechanics' lien action made an offer to settle pursuant to rule 49 of the Rules of Court. The defendant accepted the offer. The plaintiff sought to set aside the offer to settle on the basis that the settle­ment was void ab initio because the parties were not ad idem as there was no meeting of the minds.

The New Brunswick Court of Queen's Bench, Trial Division, declared that the settlement was void and was therefore set aside.

Practice - Topic 9857

Settlements - Setting aside - Grounds - The plaintiff filed a claim for lien against the defendant's property pursuant to the Me­chanics' Lien Act, registered a certificate of pending litigation and commenced an action against the defendant - The plaintiff filed an offer to settle the action - The defendant allowed two mortgages to be registered against the property without the plaintiff's knowledge - The next day, the defendant accepted the plaintiff's offer to settle - The defendant subsequently trans­ferred the property to an individual affil­iated with the defendant - As a conse­quence, the defendant was without assets and insolvent - The New Brunswick Court of Queen's Bench, Trial Division, declared that the settlement was void and was to be set aside - The defendant accepted the settlement intending not to pay any money to the plaintiff - The plaintiff always in­tended to be paid by the defendant - There was therefore no clear meeting of the minds and no agreement - The defendant also acted in bad faith in the manner that it negotiated the settlement without disclos­ing the existence of the mortgages and the transfer of the property - The plaintiff never intended to extinguish its claim for lien under the Mechanics' Lien Act in exchange for a worthless judgment.

Cases Noticed:

MacLeod v. NB Tel Inc., [2001] N.B.R.(2d) (Supp.) No. 26 (T.D.), consd. [para. 24].

Solle v. Butcher, [1950] 1 K.B. 671; [1949] 2 All E.R. 1107 (C.A.), consd. [para. 26].

Hartog v. Colin & Shields, [1939] 3 All E.R. 566, refd to. [para. 27].

McMaster University v. Wilchar Construc­tion Ltd., [1971] 3 O.R. 801 (H.C.), affd. (1973), 12 O.R.(2d) 512; 69 D.L.R.(3d) 400 (C.A.), refd to. [para. 27].

Draper v. Sisson et al. (1991), 50 C.P.C.(2d) 171 (Ont. Gen. Div.), consd. [para. 28].

Crawford et al. v. Agricultural Develop­ment Board (N.B.) et al. (1997), 192 N.B.R.(2d) 68; 489 A.P.R. 68 (C.A.), refd to. [para. 38].

Valley Equipment Ltd. et al. v. Deere (John) Ltd. (2000), 223 N.B.R.(2d) 264; 572 A.P.R. 264 (T.D.), refd to. [para. 38].

Cross Creek Timber Traders Inc. v. St. John Terminals Ltd. (2002), 248 N.B.R.(2d) 201; 646 A.P.R. 201; 2002 CarswellNB 80 (T.D.), refd to. [para. 38].

Thibodeau v. BCR Medical Clinic Ltd. et al. (2001), 238 N.B.R.(2d) 227; 617 A.P.R. 227 (T.D.), refd to. [para. 40].

Rector v. Central Guaranty Trust Co. (1993), 133 N.B.R.(2d) 5; 341 A.P.R. 5 (T.D.), refd to. [para. 40].

Counsel:

Kelly T. VanBuskirk, and Mel K. Norton, on behalf of the plaintiff;

Timothy M. Hopkins, on behalf of the defendant.

This matter was heard on March 15 and 19, 2004, before Glennie, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Saint John, who delivered the following oral decision on March 19, 2004.