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Wah Fai Plumbing & Heating Inc. V Ma, 2011 BCCA 26

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Wah Fai Plumbing & Heating Inc. V Ma, 2011 BCCA 26

Facts

The appellant was a plumber and worked as a subcontractor in the respondents’ Vancouver home as from May 2000.  The contractors paid the appellant a total of $35,000 instead of $82,882.98 for the renovations. The appellant invoiced the balance to the contractor owed upon completion of his part in 2001. Two weeks after completion, the appellant filed a lien against the owners’ land for the balance.

On August 2002, the appellant began a cause of action against the Contractors and Owners based on a breach of contract. There was no claim of lien.  In November, the appellant’s lien was extinguished because it had not been perfected within one year after it was filed by commencing an action to enforce the claim of lien and filing a certificate of pending litigation (ss. 22, 33(1) and (5) of the Builders Lien Act).  The appellant’s claim of lien against the land was quashed in May and transferred from the title to the land upon a mortgage registration of the property.

Issue

Should a subcontractor’s claim to a lien stand against a property owner who does not retain the holdback from the general contractor as provided in s. 4(9) and 8(4) of the Builders Lien Act?

Wah Fai Plumbing & Heating Inc. V Ma, 2011 BCCA 26-Arguments of the Parties

Appellant

The appellant filed a claim in 2006 claiming: a lien against the land, unjust enrichment against the owners and a lien against the holdback. The trial judge rejected these claims and the appellant appealed the ruling. Argument was based on the Shimco Case which established that Section 4(1), 4(9) and 8(4) of the Builders Lien Act provides for a distinct and independent lien against the holdback as opposed to against the land.Section 4(1) of the Act requires a person who is primarily liable on a contract to holdback 10% of the greater of the value of the work or materials under the contract, and the amount of any payment made on account of the contract. Section 4(9) provides