CROWN |
Contracts |
Giovanni's Construction Ltd. (Trustee of) v. Canada
T-624-90
MacKay J.
26/10/00
13 pp.
Motions pursuant to Federal Court Rules, 1998, r. 220(1) for determination of questions set out in agreed statement of facts--Giovanni's Construction Limited awarded contract for construction of breakwater at Sibley's Cove in Newfoundland--Pursuant to provision for periodic payment, request for payment of $144,680 after hold-back approved October 5, 1988--Payment not made before company ceased work on October 25, 1988, and before defendant advised by bank on October 28 of company's earlier assignment of book debts to it--Action seeking payment from Crown of amount claimed by Trustee as owed to Company--Trustee not entitled to amount authorized for payment i.e. $144,680--Trustee's claim subject to terms of contract--When payment of specified amount approved, Company not in default, continuing work under contract--But approval not resulting in any transfer of property interests in sum approved--Constituted amount of progress claim accrued, due prior to date on which work taken out of contractor's hands within clause 38.3--Under clause 38.2.1 Company's right to claim payment of that amount extinguished when work taken out of Company's hands--By clause 38 parties agreed Crown might take work out of Company's hands for cause, arrange for its completion by another--If doing so, agreement providing any outstanding claim of Company accrued, due prior to taking of work out of Company's hands payable only as Crown may decide by clause 38.4 in amount determined by Engineer, as provided in clause 38.3--No such determination here made--Since, under contract, Company's claim could not be pursued, plaintiff trustee having no claim against Crown.