Robert G. Smart

The defendant general contractor brought a motion for security for costs against the plaintiff sub-contractor in a construction lien dispute.

The plaintiff, an insolvent corporation whose only significant asset was the lien claim, argued that its impecuniosity should relieve it from posting security.

The court found that the plaintiff failed to provide full and frank financial disclosure regarding the ability of its shareholders to post security.

The motion was granted, and the plaintiff was ordered to post $150,000 in security for costs, plus an additional $50,000 prior to trial.

In a construction lien reference involving multiple solar farm projects, the defendant brought a motion for security for costs against the plaintiff contractor.

The plaintiff corporation had ceased operations and possessed no assets other than potential recoveries from ongoing litigation, making any future costs judgment likely unenforceable.

The court held that the threshold under Rule 56.01(d) of the Rules of Civil Procedure was met and that the plaintiff failed to demonstrate that ordering security would be unjust.

Arguments relating to delay, counterclaims, and alleged defendant-caused impecuniosity were rejected or given limited weight.

Exercising its discretion and balancing proportionality concerns, the court ordered the plaintiff to post security for costs in the amount of $225,000.

The plaintiff contractor brought a motion to amend its statement of claim to add the spouse of the defendant corporate officer as a defendant for breach of the trust provisions of the Construction Lien Act.

The claim arose from unpaid invoices for drilling and blasting services performed on multiple solar energy projects, with the plaintiff alleging that trust funds received by the contractor were diverted.

The court considered whether the claim against the proposed defendant was statute‑barred and whether leave should be granted under the Rules of Civil Procedure to add a party.

The court held that the limitation period for the trust claim began when the trust monies were received, not when the plaintiff last performed work.

Because the motion to add the new defendant was brought within two years of discovering the payment of trust funds, and any prejudice could be remedied by costs, leave to amend was granted.