The Applicant seeks costs.

statements of fact. The

court finds that the

affidavit [14]

As well, the issue of

proper affidavit evidence

was discussed in

Richard A. Harris and HAR Construction Limited v. W.H. Goodwin & Co. Ltd. And W. Harrison Goodwin,

2008 N.B.C.A. 14 at

paragraph 6.

[15] It is clear in both

types of applications, the

affidavit evidence must

be clear, unequivocal,

and accurate.

[16] The court agrees that

defective, false, misleading or incomplete

affidavits will invalidate a

claim and will lead to

dismissal.

[17] As counsel for the

Applicant pointed out,

the Respondent has a

right to pursue his claim

by proceeding with an

action.

That right will not be

affected by this order. If

there are facts in dispute,

which both counsel have

acknowledged there are,

that evidence and those

facts can be more

properly decided at a

hearing.

[18] The court accepts the

Applicant’s submission

that the Respondent’s

affidavit contained

misleading or false is

defective. It is the

affidavit which forms the

foundation of the lien.

[19] As well, it is to be noted that the affidavit of the Respondent is not consistent with the wording of the lien. The affidavit deposes that there was a supply of $59,520.97 worth of materials to the property, yet, the lien as filed in the Registry Office states that the claim is for a LGS Floor system, LGS Wall system and wages. The two documents are not consistent.

[20] Given the above, the lien must fail and is not valid. The Respondent is ordered to vacate the Lien and to file same with Service New Brunswick forthwith.

Costs

[21] The Applicant seeks costs. The Applicant prepared, filed and served a detailed and lengthy Notice of Application with supporting affidavits and exhibits. The Applicant filed a brief. These documents involved time and an expenditure of funds.

[22] Costs are awarded to the Applicant in the amount of $1,000.00 plus HST. The following disbursements are

assessed in addition: court filing fees, process service fee, and reasonable photocopies plus HST. Costs are payable forthwith.

______________________________

Barbara L. Baird, J.C.Q.B.

SUN ALLIANCE INSURANCE COMPANY and JOHN HARDING INSURANCE LTD.,

Defendants

BEFORE: The Honourable Mr. Justice Thomas W. Riordan

HELD AT: Newcastle, New Brunswick

DATE OF HEARING: July 6, 1994

DATE OF DECISION: August 12, 1994

COUNSEL AT HEARING:

John McAllister, Esq. - for the Applicants

Edwin G. Ehrhardt, Esq. - for the Defendants, Sun Alliance Insurance Company

Cynthia J. Benson, Esq. - for the Defendants, John Harding Insurance Ltd.