Gregory Hemsworth

The defendants brought a motion under Rule 21.01(1)(a) to strike the plaintiffs' claims for declaratory relief regarding express, resulting, and constructive trusts, as well as fraudulent conveyances.

The plaintiffs, who are judgment creditors, alleged that the defendants transferred properties to their spouses to defeat creditors.

The court dismissed the motion to strike, finding that the plaintiffs had pleaded sufficient facts to support their claims and that it was not plain and obvious the claims would fail.

The court also granted the plaintiffs' countermotion for a discovery plan.

The defendants in a construction dispute moved for leave to amend their Response to the plaintiff's Request to Admit.

The court granted leave under s. 67(2) of the Construction Lien Act, finding the step necessary to resolve ambiguities and expedite the trial.

Applying the three-part test for withdrawing admissions, the court allowed the amendments, noting they raised triable issues regarding the validity and authenticity of the alleged contracts, there was a reasonable explanation for the initial deficient responses by former counsel, and the plaintiff suffered no non-compensable prejudice.

The plaintiff brought an ex parte motion seeking a Mareva injunction and a certificate of pending litigation against the residential property of the individual defendants in relation to an alleged unpaid debt exceeding $24,000.

The plaintiff alleged diversion of trust funds under Part 2 of the Construction Lien Act and relied primarily on an affidavit asserting belief that the defendants were liquidating assets and leaving the jurisdiction.

The court held that a Mareva injunction is an extraordinary remedy requiring a strong prima facie case and evidence of a real risk of asset dissipation.

The affidavit evidence amounted only to unsupported belief and did not meet the required threshold.

The court also found no reasonable claim to an interest in land sufficient to justify a certificate of pending litigation.

A contractor brought a construction lien action seeking payment for landscaping work performed at a residential property.

The property owner argued the parties had agreed to a fixed lump‑sum contract and counterclaimed for the cost of correcting deficiencies and completing the work.

The court found no lump‑sum contract existed and instead concluded the arrangement was an open‑ended design‑build project where costs increased as the owner selected upgraded materials and features.

After reviewing a Scott Schedule and evidence of work performed, the court determined the contractor was entitled to payment for completed work subject to deductions for deficiencies.

Judgment was granted enforcing the construction lien for the net amount owed after deducting remediation costs.