Greg Hersen

Following a trial of an issue regarding notice holdback liability under the Construction Lien Act, the plaintiff sought costs.

The defendant argued for no costs due to divided success and public interest.

The court found the plaintiff was the successful party, having established $215,054.80 in holdback liability.

While the court reduced the costs claim for proportionality and divided success, it elevated the base standard to substantial indemnity due to the defendant's capricious conduct regarding a section 39 response.

The plaintiff was awarded $150,000 in costs.

In a trial of an issue within a construction lien reference, the court determined the owner's notice holdback liability under s. 24 of the Construction Lien Act.

The subcontractor argued that ten emails constituted written notices of lien.

The court held that a valid written notice of lien requires a clear warning that the dispute has reached the lien stage and that the flow of funds must be interrupted.

Only one email met this requirement.

The court further held that the owner's notice holdback liability was reduced by subsequent payments made by the contractor to the subcontractor, resulting in a final notice holdback liability of $215,054.80.