Pollett's Electrical Service Ltd. v. Guarantee Co. of North America, (1974) 5 Nfld. & P.E.I.R. 579 (NFCA)

JudgeFurlong, C.J., Higgins and Mifflin, JJ.
CourtNewfoundland Court of Appeal
Case DateApril 17, 1973
JurisdictionNewfoundland and Labrador
Citations(1974), 5 Nfld. & P.E.I.R. 579 (NFCA)

Pollett's v. Guarantee Co. (1974), 5 Nfld. & P.E.I.R. 579 (NFCA)

MLB headnote and full text

Pollett's Electrical Service Ltd. v. The Guarantee Company of North America

Indexed As: Pollett's Electrical Service Ltd. v. Guarantee Co. of North America

Newfoundland Supreme Court

On Appeal

Furlong, C.J., Higgins and Mifflin, JJ.

April 17, 1974.

Summary:

This action arose out of the plaintiff's claim on a bond given by the defendant. The plaintiff filed a mechanics' lien against an asphalt plant owned by a construction company. The plant was movable, but it was attached to sills embedded in the ground. After the filing of the lien, the construction company wanted to move the plant but could not do so because of the lien. In order to obtain a release of the plant, the defendant gave a bond to the plaintiff to secure the amount of the lien plus costs on the condition that the lien was valid. The lien was discharged and the plant moved, but the plaintiff was never paid. The plaintiff brought an action on the bond against the defendant. Puddester, J., in the Newfoundland Supreme Court in a decision dated June 6, 1972 and reported 3 Nfld. & P.E.I. R. 35, allowed the action and awarded the plaintiff $14,722,49. The defendant appealed. In the judgment below the appeal court dismissed the appeal.

The appeal court held that the asphalt plant was an "erection" within the meaning of the Mechanics' Lien Act, R.S. Nfld. 1952, c. 263, ss. 4 and 5(1), and was accordingly lienable property. The appeal court held that the determination with regard to whether the asphalt plant was an erection was to be made upon a consideration of the condition and quality of the plant at the time the lien was placed - paragraph 12. The appeal court held that at the time the lien was filed, the plant was secured to the soil and had lost the characteristics of a chattel - paragraph 15.

Mechanics' Liens - Topic 254

Lienable interest - Property to which lien may attach erection - Newfoundland Mechanics' Lien Act, R.S. Nfld. 1952, c. 263, ss. 4 and 5(1) - Removable asphalt plant attached to sills embedded in the ground - Newfoundland Court of Appeal held that the asphalt plant was an "erection" within the meaning of the Act and was subject to a lien.

Words and Phrases

"Building or erection" - Newfoundland Court of Appeal discussed the meaning of the words "building or erection" in the Newfoundland Mechanics' Lien Act, R.S.N. 1952, c. 263, ss. 4 and 5(1) - Newfoundland Court of Appeal held that an asphalt plant was an "erection" within the meaning of the Act and was subject to a lien.

Cases Noticed:

Galvin v. Ensor, 65 D.L.R. 686, dist. [para. 13].

Polson v. Thomson (1916), 29 D.L.R. 395, refd to. [para. 13].

Statutes Noticed:

Mechanics' Lien Act, R.S.N. 1952, c. 263, sect. 4 [para. 11]; sect. 5(1) [para. 11]; sect. 31(1) [para. 10].

Counsel:

D. Paul Althouse, for the defendant/appellant;

Alan Carter, for plaintiff/respondent.

This case was heard on April 17, 1973. Judgment was delivered on April 15, 1974.

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