TJ Inspection Services v. Halifax Shipyard,

• Jurisdiction: Nova Scotia
• Judge: O'Hara
• Neutral Citation: 2004 NSSM 5
• Citation: (2004), 249 N.S.R.(2d) 1 (SmCl),2004 NSSM 5,249 NSR(2d) 1,(2004), 249 NSR(2d) 1 (SmCl),249 N.S.R.(2d) 1
• Date: 01 January 2004
• Court: Small Claims Court of Nova Scotia (Canada)

TJ Inspection v. Halifax Shipyard (2004), 249 N.S.R.(2d) 1 (SmCl);

    792 A.P.R. 1

MLB headnote and full text

Temp. Cite: [2006] N.S.R.(2d) TBEd. OC.012

TJ Inspection Services (claimant) v. Halifax Shipyard/Irving Shipbuilding Inc. (defendant)

(Claim No.: SCCH 222129; 2004 NSSM 5)

Indexed As: TJ Inspection Services v. Halifax Shipyard

Nova Scotia Small Claims Court

O'Hara, Adjudicator

October 2004.

Summary:

The claimant sued the defendant for payment on three invoices. The defendant's defence was rooted in set-off.

An Adjudicator of the Nova Scotia Small Claims Court granted judgment to the claimant.

Practice - Topic 1843

Pleadings - Counterclaim and set-off - Set-off - Circumstances when set-off can or cannot be claimed - The claimant sued for payment on three invoices - The defendant relied on a set-off clause contained in the standard terms and conditions issued by the defendant - The defendant argued that the Small Claims Court could deal with the set-off defence by granting a stay of execution of any judgment in favour of the claimant pending disposition of the defendant's counterclaim for damages against the claimant in an action in the Supreme Court - An Adjudicator of the Nova Scotia Small Claims Court accepted that the set-off clause applied to the invoices in question - However, the Adjudicator rejected the defendant's argument that the set-off clause entitled it to deduct any amount which it alleged was owed by the claimant under any other contract - The set-off ability had to have some restraints or limits - The Adjudicator stated that while an appropriate limit might be "a liquidated debt" or "money demand" which could be ascertained, it was not necessary to determine what the exact limit or parameter of the clause was - It was sufficient that the Adjudicator concluded that the clause should not be interpreted to extend to an allegation of money owed or liable for in the Supreme Court proceeding.

Cases Noticed:

Haines, Miller and Associates Inc. v. Foss (1996), 153 N.S.R.(2d) 53; 450 A.P.R. 53 (S.C.), refd to. [para. 2].

Llewellyn (R.) Building Supplies Ltd. v. Nevitt (1987), 80 N.S.R.(2d) 415; 200 A.P.R. 415 (Co. Ct.), refd to. [para. 2].

Atlantic Lines & Navigation Co. v. Ship Didymi and Didymi Corp. (1987), 78 N.R. 99; 39 D.L.R.(4th) 399 (F.C.A.), refd to. [para. 6].

Lever v. Positronic Software Inc. (1996), 155 N.S.R.(2d) 197; 457 A.P.R. 197 (C.A.), refd to. [para. 6].

Federal Commerce and Navigation Ltd. v. Molena Alpha Inc., [1978] 3 All. E.R. 1066 (C.A.), refd to. [para. 8].

Dudka v. Smilestone (1994), 131 N.S.R.(2d) 81; 371 A.P.R. 81 (S.C.), refd to. [para. 19].

Authors and Works Noticed:

Burton, Steven J., Breach of Contract and the Common Law Duty to Perform in Good Faith (1980), 94 Harv. L. Rev. 369, generally [para. 19].

Counsel:

Clamant, self-represented;

David Henley, for the defendant.

This action was heard before O'Hara, Adjudicator, of the Nova Scotia Small Claims Court, who delivered the following decision in October 2004.