Roger A. Gosbee

The defendants brought a motion to declare the plaintiff's construction lien expired and to vacate it, arguing it was not preserved in time and the statement of claim was not served within the 90-day statutory period.

The court found the lien was preserved in time based on the actual date of contract termination.

Regarding the late service of the statement of claim, the plaintiff's counsel admitted to a six-month delay, citing oversight and the impact of the COVID-19 pandemic.

The court adjourned the motion to allow the plaintiff to bring a cross-motion for an extension of time for service, requiring more evidence on the pandemic's effect on the delay.

The plaintiff sought a constructive trust over the deceased's home and vehicle, claiming unjust enrichment arising from their common law relationship and joint family venture.

The court found that while the parties were in a joint family venture and the deceased was enriched by the plaintiff's contributions to the property and caregiving for his family, the plaintiff had been adequately compensated.

She received approximately $250,000 through beneficiary designations upon his death and had exclusive use of the home and vehicle for over two years.

The plaintiff's claim was dismissed, and the estate's counterclaim for possession of the home and vehicle was granted, though occupation rent was denied.

The defendants brought a motion to set aside a default judgment obtained by the plaintiff in 2010 regarding a failed immigration consulting contract.

The defendants argued they were not properly served and that the claim was not a liquidated demand.

The court found that service was properly effected pursuant to a substituted service order and that the claim for a refund of the contract price was a liquidated demand.

Applying the test to set aside a default judgment, the court held that the defendants failed to move promptly after learning of the judgment and that the plaintiff would suffer significant prejudice due to the death of key witnesses.

The motion was dismissed.

The moving party sought to strike the plaintiff’s Superior Court action as an abuse of process, arguing that the plaintiff’s earlier Small Claims Court proceeding—later dismissed as abandoned—barred the new action.

The court held that the Small Claims Court dismissal was administrative and not a determination on the merits.

The endorsement from the settlement conference did not constitute a binding order requiring transfer to the Superior Court, and the defendant had not demonstrated prejudice.

Applying the flexible abuse of process doctrine, the court concluded that allowing the claim to proceed would not undermine the administration of justice.

The plaintiff mortgagee brought a motion seeking payment out of court of funds deposited by the defendant after redeeming a replacement vendor take‑back mortgage in foreclosure proceedings.

The defendants asserted an equitable set‑off defence alleging negligent fill operations, excess fill, and contamination affecting the property.

The court found the allegations unsupported by evidence and noted the mortgage required payment without deduction or abatement.

The defendants failed to particularize or substantiate the set‑off claim and did not demonstrate prejudice warranting a stay of payment.

The court ordered the funds paid out to the plaintiff while leaving the equitable set‑off issue to be determined separately.