A contractor and a second mortgagee disputed entitlement to insurance proceeds paid into court following a fire that destroyed equestrian facilities.
The contractor claimed priority under s. 85 of the Construction Lien Act based on a construction lien arising from reconstruction work, while the mortgagee claimed entitlement based on a second mortgage and alleged shortfall following a power of sale.
The court found the evidentiary record insufficient to determine whether the contractor had a valid and timely lien and expressed concerns about the validity of the mortgage due to possible past consideration.
As a result, the court declined to order payment of the funds to either claimant and directed that the dispute proceed to trial for viva voce evidence and further documentary proof.
