June 7, 2010, Complete Brief 1, used for First Hearing FC.104.09

7/30/2019 June 7, 2010, Complete Brief 1, used for First Hearing FC.104.09

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PART 1 INDEX

Book 1

PAGEA. PART I INDEX _____________________________________________iiB. PART II STATEMENT OF FACTS ____________________________ 1C. PART III - ISSUES _____________________________________________ 14

1. Questions for the Court to answer_________________________________2. Introduction _________________________________________________143. Owner______________________________________________________194. Power of Attorney ____________________________________________195. Lien Claimant _______________________________________________216. Filling of Lien _______________________________________________227. Time for Filling ______________________________________________238. Action is commenced _________________________________________249. Service of Documents_________________________________________2710.Order continuing the action ____________________________________3011.Example litigation - Stare Decisis _______________________________3212.Costs ______________________________________________________35

D. PART VI ORDERS SOUGHT________________________________36E. SCHEDULE A LIST OF AUTHORITIES ___________________36F. SCHEDULE B TEXT OF RELEVANT PROVISIONS OF

STATUTES OR REGULATIONS ____________________________37

G. SCHEDULE C LISTED AUTHORITIES FULL DISCISION CITED______________________________________

1. Mechanics' Lien Act, R.S.N.B. 1973, c. M-6 (CanLII)_______________492. J.K. Dineen v. Morris Music, 2004 NBQB 43 (CanLII)______________87


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BPART II STATEMENT OF FACTS

1. Plaintiff Andr Murray is the Plaintiff in this matter, as the Lien ClaimantRegarding P.I.D. 01548650 and Property Account Number 00506975 asfound recorded or filed in the York county Registry Office NewBrunswickPlaintiff Andr Murray did cause a Claim for a Lien pursuant to theMechanics Lien Act, ss.20(3)(the "Act") to be registered or filed in theYork county Registry Office New Brunswick April 16, 2009 #27035311.

(Please see RECORD ON MOTION BOOK Filed by PlaintiffANDRE MURRAY BOOK 1 and located within TAB 2)

2. Defendantin the matter before this Honorable Court BETTY ROSEDANIELSKI is the beneficial owner of the property as aforementioned herewithin (paragraph 1) subject of Claim for a Lien pursuant to theMechanicsLien Act, ss.20(3)(the "Act") registered or filed in the York countyRegistry Office New Brunswick April 16, 2009 #27035311which is

registered with Land Titles office under the title number (P.I.D. 01548650) onwhich stands a Residential duplex bearing both civic addresses 29 and 31Marshall Street at the City of Fredericton, County of York and Province of NewBrunswick., which is also the subject of this Statement of Claim.

3. Plaintiff Andr Murray has since the year 2005, been a Leaseholder andResidential Tenant of the above, here within (paragraph 2) mentioned duplex andhas according to his Lease occupied both civic addresses for the said duplex 29and 31 Marshall Street at the City of Fredericton, County of York and Provinceof New Brunswick.

4. Defendant in the matter before this Honorable Court Betty Rose Danielski has

since year 2005 been the Landlord of Plaintiff Andr Murray and currently is aLeaseholder of the above mentioned duplex both civic addresses 29 and 31Marshall Street at the City of Fredericton, County of York and Province of NewBrunswick.

5. As the Plaintiff in the matter before this Honorable Court Andr Murray did filewith the Court of Queens Bench Fredericton Trial Division a Form 6 Certificateof Pending Litigation (Mechanics Lien Act, R.S.N.B. 1973, c.M-6,s27) DATEDat Fredericton April 21, 2009

6. The land to be charged, under the Mechanics Lien Act, R.S.N.B. 1973, c.M-6,s27as aforementioned here within paragraph 5, is P.I.D. 01548650 at the City of

Fredericton, County of York and Province of New Brunswick, which land has aduplex dwelling bearing civic addresses 29 Marshall Street, and 31 MarshallStreet.

7. Plaintiff Andr Murray as indicated in Amended Statement of Claim (FORM16C) filed with Court of Queens Bench Fredericton New Brunswick, August 21,2009, began a periodic (year to year) Residential Tenancy, September 01, 2005of both civic addresses 29 and 31 Marshall Street which are the subject of thehere within actions.


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8. Plaintiff Andr Murray is a Residential Tenant of Landlord and herein named

Defendant of this Motion for a Continuance, Defendant Betty Rose Danielski.

9. Plaintiff Andr Murray has provided this Honorable Court evidence of theLeasehold agreement dated September 1, 2005.

10.Defendant Betty Rose Danielski as Landlord has received from ResidentialTenant Plaintiff Andr Murray payment in full, all rent due, for both civicaddresses 29 and 31 Marshall Street, Fredericton till September 01, 2010.

11.Defendant Betty Rose Danielski as Landlord of the subject Property has been anabsentee Landlord for the entire Residential Tenancy period September 01, 2005of which Tenant Andr Murray and Plaintiff in this matter was Contracted to actas caretaker of the premises.

Service of Documents

12.Further to the entries found above, here within paragraph 10 Plaintiff AndrMurray intends to establish that Landlord and Title holder of the subject PropertyDefendant Betty Rose Danielski did in fact abandon the Property subject of thisClaim for Lien as filed by Plaintiff Andr Murray.

13.Plaintiff Andr Murray has reason to believe that a hostile neighbor stealingCourt Documents from the mailbox. This same neighbor has been interceptingcorrespondence which had been sent by courier and intended to be received byPlaintiff Andr Murray. This particular incident documented evidence of samewas discovered because the neighbor who intercepted the courier was lateridentified by the courier service.

14. Further to the aforementioned neighbor who possesses a strong inclination forstealing Court Documents from the mailbox and or intercepting Courier Serviceof same. Plaintiff Andr Murray has reason to believe that the theft of othercorrespondence arriving at 29 and or 31 Marshall Street, over the past years, hasbeen perpetrated by this same neighbor. The following actions have consequentlybeen inhibiting and preventing Plaintiff Andr Murray from being able tocounterclaim/defend and or respond to urgent matters both legal and financial asthe situation may require.

15.Plaintiff Andr Murray has reason to believe that Defendant Betty RoseDanielski has been avoiding service of Court Documents since June, of 2009consequentially, requiring Plaintiff Andr Murray to commission Process Server

George Mallia, of CANADIAN PROCESS SERVING INC. Toronto HeadOffice 142 Catherine Street South, Hamilton, ON, L8N 2J8, who werefinally successful in the Service of the Notice of Action and not before October19, 2009.

16.Although Defendant Betty Rose Danielski has attempted to obfuscate the matterthroughout her many affidavits and relative correspondence since April, 2009Plaintiff Andr Murray has good reason to believe Defendant Betty Rose


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Danielski has been aware of the subject Lis Pendens and Claim for Lien as earlyas June, 2009.

17.Since it is the position of Plaintiff Andr Murray that Defendant Betty RoseDanielski was aware of, as above aforementioned, here within paragraph 15Registered Claim for Lien and the Certificate of Pending Litigation as early as

June, 2009 Plaintiff Andr Murray can and will substantiate before thisHonorable Court these allegations by the juxtaposition of the SWORN Affidavitsof the various parties to this matter.

18.Plaintiff Andr Murray alleges that Defendant Betty Rose Danielski has avoidedService of his Notice of Action documents as early as June 2009 and continuedavoidance until October 2009.

19.Power of Sale NOTICE OF MORTGAGE SALE for the subject property wasauthorized by Defendant Betty Rose Danielski only three months after PlaintiffAndr Murray Registered a Claim for Lien pursuant to theMechanics LienAct, ss.20(3)(the "Act") to be registered or filed in the York county

Registry Office New Brunswick April 16, 2009 #27035311.

20.The aforementioned Power of Sale as authorized by Defendant Betty RoseDanielski NOTICE OF MORTGAGE SALE for the subject property did occurJuly 16, 2009 without proper Notice to Registered Claim for Lien Claimant andResidential Tenant Leaseholder Plaintiff in the matter before this HonorableCourt Andr Murray.

21. Immediately following the here within, aforementioned Power of Sale NOTICEOF MORTGAGE SALE which occurred July 16, 2009, Residential TenantLeaseholder Plaintiff Andr Murray was contacted by Holders off the Mortgage,Royal Bank of Canada (hereafter RBC) and the tentative purchasers of the

Mortgagee Deed a body corporate, 501376 N.B. Ltd. Requesting a renegotiationof a new Residential Lease.

22.Residential Tenant Leaseholder Plaintiff Andr Murray explained to both theSolicitors for the RBC Vendor of the Mortgagee Deed and Tentative Purchaserof the Mortgagee deed, 501376 N.B. Ltd. a body corporate, further, thatResidential Tenant Leaseholder Plaintiff Andr Murray was not interested insurrendering his at this time current Lease only to renegotiate a new lease asthey the Solicitors were offering.

23. Interesting note is that the Solicitor acting as the purchasing agent for theTentative Purchaser of the (Registered against the subject) Property Mortgagee

Deed, 501376 N.B. Ltd. a body corporate, whom same Solicitor acting as thepurchasing agent did attend the Auction Sale NOTICE OF MORTGAGE SALEwhich occurred July 16, 2009 found it appropriate to mention by way ofAffidavit that it was necessary to travel by aircraft to Toronto, Ontario to meetwith a unnamed Client on or about July 16, 2009 and immediately following theabove here within mentioned Auction Sale NOTICE OF MORTGAGE SALEPoint of Interest and possible conflict may exist as Toronto, Ontario is also whereDefendant Betty Rose Danielski resides.


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24.Plaintiff Andr Murray verily believes that Defendant Betty Rose Danielski

intends to avoid honoring her obligations pursuant to theMechanics Lien Act,and the Contract for work of the subject property crafted betweencontractor Andr Murray and Title holder Betty Rose Danielski.

25.Defendant Betty Rose Danielski continues to obfuscate the matter as to herownership furthermore as to her being the Title Holder of the Property which isthe subject of the Claim for Lien pursuant to theMechanics Lien Act and theMotion for Continuance which is the matter before this Honorable Court.Plaintiff Andr Murray recognizes that Defendant Betty Rose Danielskicontinues to be registered with the York county Registry Office NewBrunswick as Title Holder.

26.Note: Prior to aforementioned Power of Sale NOTICE OF MORTGAGE SALEwhich occurred July 16, 2009, furthermore, which was a Auction Sale of anInvestment Tool and called a Mortgagee Deed for the same property of which

Plaintiff Andr Murray exactly three months prior became a Registered LienClaimant. Plaintiff Andr Murray did cause a Claim for a Lien pursuant to theMechanics Lien Act, ss.20(3)(the "Act") to be registered or filed in theYork county Registry Office New Brunswick April 16, 2009 #27035311consequently, establishing Plaintiff Andr Murray as holding a significantInvestment Interest in the Property.

27.Notwithstanding the July 16, 2009 Auction Sale of a (Investment Instrument)Mortgagee Deed by the RBC against the subject property, furthermore, thesuccessful Proof of Claim by Lien Claimant and Plaintiff in this matter AndrMurray of his Lis Pendens subsequently Registered and or Filed in the Yorkcounty Registry Office New Brunswick April 21, 2009 #27051904, which,

is also the same property and subject of this Motion for Continuance,consequently established Plaintiff Andr Murray as holding the greatest interestin the subject Property.

28.Notwithstanding, abundant evidence of Residential Tenant and Plaintiff (in thismatter) Plaintiff Andr Murray possessing a year to year lease for said propertyDefendant Betty Rose Danielski Landlord of subject property authorized theRBC to take whatever legal action necessary to evict Tenant (Plaintiff in thismatter) Plaintiff Andr Murray from both civic addresses 29 and 31 MarshallStreet, Fredericton.

29.Consequently, and resulting from an EX PARTE hearing of a Motion for Orders

to Vacate occurring without Proper Notice to Tenant and Plaintiff in this matterPlaintiff Andr Murray, found himself evicted from his Leasehold of 29 MarshallStreet, Fredericton, furthermore same eviction occurred without advance noticeor warning offered to Tenant and Plaintiff in this matter Plaintiff Andr Murray.

30.May it please this Honorable Court that the above mentioned eviction (as foundin paragraph 21) occurred October 23, 2009, subsequent to the aforementionedEX PARTE hearing, of Date October 20, 2009, in the Court of Queens Bench,Moncton Trial Division.


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31.May it please this Honorable Court: Andr Murray 27th day of October, 2009

filed IN THE COURT OF APPEAL OF NEW BRUNSWICK, a NOTICE OFMOTION FOR LEAVE TO APPEAL (FORM 62A)

32.Andr Murray AS INTENDED APPELLANT succeeded in obtaining a decision

that there occurred a wrongful eviction of Andre Murray from his ResidentialTenancy of 31 Marshall Street, Fredericton as a resulted from impugned Ordersfurthermore, Costs were awarded to INTENDED APPELLANT Andre Murray of$1000 against the INTENDENT RESPONDENTS Royal Bank of Canada.

33.Following the eviction of Plaintiff Andr Murray from his 29 Marshall Street,Fredericton Appellant Justice Richard Bell heard Intended Appellant PlaintiffAndr Murray DATE November 12, 2009 at Appeal Court hearing and restoredPlaintiff Andr Murray to his Rightful Tenancy at 31 Marshall Street.

34.Appellant Justice Richard Bell having heard Intended Appellant Plaintiff AndrMurray DATE November 12, 2009, offered further directions that Plaintiff Andr

Murray, should return to Moncton and file a Motion with the Court of QueensBench, Moncton Trial Division for Rescinding of Orders October 20th, 2009 toVacate 29 Marshall Street. Further, Appellant Justice Richard Bell was of theopinion that it was not his place to Rescind the impugned Orders from a lowerCourt. Further, that he believed it to be proper that the Justice Zol R. Dionneshould have the opportunity to Rescind his own Orders.

35.May it please this Honorable Court: Plaintiff Andr Murray did on October 25,2009 or there about, did shortly following the eviction of Andr Murray from hisResidence did contact by telephone Solicitor George LeBlanc for the RBC,further, requesting that access to 29 Marshall Street be granted to Plaintiff AndrMurray that he may retrieve significant, Substantive Legal Documents, which

was further explained to Solicitor George LeBlanc are relevant evidence,absolutely necessary for Plaintiff Andr Murray to schedule a examination fordiscovery for the matters regarding the Claim for Lien, amongst many otherthings. Note to this date Solicitor George LeBlanc continues to refuse access.

36.Solicitor George LeBlanc for the RBC did on October 26, 2009 or there about,did correspond by e-mail with Plaintiff Andr Murray, thereby, denying access to29 Marshall Street. Note; to this date Solicitor George LeBlanc continues torefuse access, that Andr Murray may retrieve all relevant documents, evidenceof which confirms his Claim for Lien, amongst other issues. Marked B is acopy of the email response to Andr Murrays request to access 29 MarshallStreet, of Solicitor George LeBlanc obfuscating the matter and avoiding

discussion of documents. ( Please see RECORD ONMOTION BOOK 1 TAB 11 )

37.May it please this Honorable Court Plaintiff Andr Murray verily believes thatDefendant Betty Rose Danielski is working together with the Solicitor GeorgeLeBlanc Royal Bank of Canada in a effort to deny Andr Murray access to hisLease Hold Property bearing civic address 29 Marshall Street.


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38.May it please this Honorable Court the Honorable Justice Zol R. Dionne onhearing of a Motion brought by Solicitor George LeBlanc to Adjourn a Motion toRescind Orders of October 20th, 2009 issued by Honorable Justice Zol R.Dionne and scheduled to be heard the same day, furthermore, Honorable JusticeZol R. Dionne comprehending the prejudice and potential harm of denyingAndre Murray access to his 29 Marshall Street Leasehold did suggest that

Solicitor George LeBlanc could tacitly allow Andre Murray to occupy 29Marshall Street for the interim. This decision was left with Solicitor GeorgeLeBlanc as he had immediately refused this offer.

39.Solicitor George LeBlanc is acting on behalf of the Royal Bank of Canada theholders of a Mortgage registered against 29 Marshall Street, Fredericton.

40. Plaintiff Andr Murray on October 25, 2009 or there about, has contacted bytelephone Solicitor George LeBlanc numerous times, requesting, access topossessions located 29 Marshall Street be granted to Plaintiff Andr Murray,furthermore, that he may retrieve significant substantive evidence and documentsrelevant and absolutely necessary for Plaintiff Andr Murray to schedule a

examination for discovery for the matters within. Note to this date SolicitorGeorge LeBlanc continues to refuse access.

41.Note to this date Solicitor George LeBlanc continues to refuse access to 29Marshall Street. Marked B is a copy of the email response of Solicitor GeorgeLeBlanc to Plaintiff Andr Murrays request to access 29 Marshall Street.( Please see RECORD ON MOTION BOOK 1 TAB 11 )

42.As previously mentioned Plaintiff Andr Murray has been evicted from hisLeasehold Property 29 Marshall Street October 23, 2009 which to this dateremains unoccupied, except for the furnishings and other private property, all ofwhich are possessions/effects of Plaintiff Andr Murray.

43.The Plaintiff Andr Murray has been appropriately Filing with the Court ofQueens Bench Motions for Orders Granting relief that provide Plaintiff AndrMurray access to his Lease hold Property 29 Marshall Street, furthermore, that hemay obtain, evidentiary documents currently being withheld which are absolutelyessential that Plaintiff Andr Murray may seek remedy and a fair trial.

44.May it please this Honorable Court that Plaintiff Andr Murray be granted therequested continuance and declares that to date Plaintiff Andr Murray hasfaithfully and dutifully attended the Court of Queens Bench, Moncton TrialDivision Hearings for a Motion to the Rescinding of Orders to Vacate 29Marshall Street. That he may retrieve his documents which are absolutely

essential to establishing his legitimate Claim for Lien pursuant to theMechanics Lien Act, ss.20(3)(the "Act") before this Honorable Court.

45.Plaintiff Andr Murray has Filed with the Court of Queens Bench, Moncton TrialDivision, a Motion to Rescind Orders of October 20th, 2009 to Vacate 29Marshall Street, Fredericton. Furthermore, Andr Murray intends to prove theOrders of October 20th, 2009 were impugned, therefore, wrongfully issued, which


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had consequently resulted in a Court Hearing Ex Parte, without Proper Notice tothe Defendant and in the case filed under Court File M/C/0642/09.

46.As per the above paragraph 44 these instructions received from Appellant JusticeRichard Bell to INTENDED APPELLANT Andre Murray on November 12,2009 at the COURT of APPEAL of NEW BRUNSWICK hearing with Appellant

Justice Richard Bell sitting. It was decided that Andre Murray must return to theOriginal Court from which came the impugned Orders to evict and that AndreMurray must Motion to Rescind the Orders of October 20th, 2009 including theeviction from 29 Marshall Street, Fredericton.

47.Consequently following COURT of APPEAL of NEW BRUNSWICK hearingwith Appellant Justice Richard Bell Hearings requesting Leave to Appealfurthermore, Andre Murray has followed the instructions, returning to the Courtof Queens Bench, Moncton Trial Division attending on the Motion to RescindOrders of October 20th, 2009 at the following dates all of which Solicitor GeorgeLeBlanc for the Plaintiffs RBC has managed to successfully Motion forAdjournment of same: 14 day of December 2009, January 18, 2010 March 22, 2010

48.March 12, 2010 Plaintiff Andr Murray Filed with the Court of Queens Bench,Moncton Trial Division an Officially Commissioned Transcript of CourtHearings which reveals Solicitor George LeBlanc deceiving the Honorable Courtin order that he obtain admitting his deception of the Honorable Court duringand leading up to the Ex Parte Orders of date October 2oth, 2009, consequently,resulting in the impugned Orders evicting Plaintiff Andr Murray from 29Marshall Street. It appears that another scheduled hearing of a Motion to RescindOrders, brought forward by Plaintiff Andr Murray, date March 22, 2010 has

once again been adjourned.

49.The Original Documents and or Certified Copies of Original ContractualDocuments which will inevitably be retrieved from Plaintiff Andr Murrayscurrently unoccupied Leasehold property, of civic address 29 Marshal Street areas follows:

a) Contractual Agreement to furnish material and or Supplies to be used inimprovement for the premises, civic address 29 and 31 Marshall Street at thecity of Fredericton

b) Documents establishing DEFENDANT BETTY ROSE DANIELSKI is

the beneficial owner of the subject property which is registered with LandTitles office under the title number (P.I.D. 01548650) and civic address 29 31 Marshall Street at the City of Fredericton, County of York and Provinceof New Brunswick., which is also the subject of this Statement of Claim.

c) Documents establishing Plaintiff Andr Murray is the tenant and soleresident of the duplex dwelling, bearing civic addresses 29 Marshall Streetand 31 Marshall Street at the City of Fredericton, County of York andProvince of New Brunswick, which is the subject property of this Statement


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of Claim and the FORM 2 CLAIM FOR LIEN [Mechanics LienR.S.N.B.1973 c.M-6,ss.20(3)] registered or filed in the York County Registryoffice, New Brunswick April 16, 2009 at time 15:08 number 27035311. Thetenancy of Plaintiff Andr Murray at civic address 29-31 Marshall Street atthe City of Fredericton, County of York and Province of New Brunswick is aPeriodic Tenancy, beginning September 01, 2005 and is to run from year to

year according to the (The Residential Tenancies Act, Acts of New Brunswick, 1975,c.R-10.2, s.9)

d) Documents establishing the Plaintiff Andr Murrayobtained an exclusiveand irrevocable right to first refusal and first option to purchase fromDEFENDANT BETTY ROSE DANIELSKI subject property, which isidentifiable as and registered with Land Titles office under the title number(P.I.D. 01548650) And civic address 29 Marshall Street and or 31 MarshallStreet at the City of Fredericton, County of York and Province of NewBrunswick.

e) Documents establishing A Power of Attorney appointed by DEFENDANT

BETTY ROSE DANIELSKI, who acted as agent on behalf ofDEFENDANT BETTY ROSE DANIELSKI, and did on or about June,2005 negotiate the terms of the Contractual Agreement with Plaintiff AndrMurray to provide labour and to furnish material and or supplies to be usedin improvementfor the premises, civic address 29 Marshall Street and or 31Marshall Street at the City of Fredericton.

f) Documents establishing and identifying a Power of Attorney appointed byDEFENDANT BETTY ROSE DANIELSKI, listed as Defendant JohnDoe 2 in the AMENDED STATEMENT OF CLAIM (FORM 16C) FILEDwith COURT of QUEENS BENCH, FREDRICTON TRIAL DIVISIONAUGUST 21 2009 is unknown at this time. who acted as agent on behalf of

DEFENDANT BETTY ROSE DANIELSKI, and did on or about June,2005 negotiate the terms of the Contractual Agreement with Plaintiff AndrMurray to provide labour and to furnish material and or supplies to be usedin improvementfor the premises, civic address 29 Marshall Street and or 31Marshall Street at the City of Fredericton.

g) Correspondence addressed to Plaintiff Andr Murray at his place ofresidence civic address 29 Marshall Street and or 31 Marshall Street.Fredericton, NB has received by Canada Post (as recently April, 2009)written correspondence, addressed to Plaintiff Andr Murray, and handwritten from the DEFENDANT BETTY ROSE DANIELSKI.

50.On June 2005 the Plaintiff Andr Murray as Contractor and the Defendant BettyRose Danielski as Titleholder entered into a Continuing Contractual Agreementfor Maintenance and Property Management services of duplex residence, civicaddress 29 Marshall Street and 31 Marshall Street, Fredericton, New Brunswick.

51.Renovations in accordance with the signed Contractual Agreement forMaintenance and Property Management services of duplex residence, civicaddress 29 Marshall Street and 31 Marshall Street, Fredericton, New Brunswick


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signed June 2005 commenced July 2005 at civic address 29 Marshall Street and31 Marshall Street at the expense of Plaintiff Andr Murray.

52.Plaintiff Andr Murray did faithfully and according to the terms of the subjectcontracts pay all costs for the repairing, improving and maintenance of duplexresidence, civic address 29 Marshall Street and 31 Marshall Street, Fredericton,

NB beginning July 2005 and continues to this date.

53.The Plaintiff Andr Murray,has not at any time, since the beginning of thesubject contracts, as crafted by Continuing Power of Attorney for Property andappointed by Betty Rose Danielski, ever failed to perform as contracted andconsequently has performed honorably.

54.The terms of the contract referred to in paragraph 1 of the Amended Statement ofClaim, specifically state, that on the fourth year of the contract the PlaintiffAndr Murray may request of thebeneficial owner DEFENDANT BETTYROSE DANIELSKI to performthe transfer of the title from the name ofDEFENDANT BETTY ROSE DANIELSKI and into the nameof

PLAINTIFF ANDR MURRAY.(Please see RECORD ON MOTION BOOK 1 TAB 6 )

55.Failure of the DEFENDANT BETTY ROSE DANIELSKI to perform transferof the title, according to terms of contract as previously stated in paragraph 16 ofthe Amended Statement of Claim, when requested by Plaintiff Andr Murraymay cause all costs and expenses to date, furthermore, which had been to thebenefit ofDEFENDANT BETTY ROSE DANIELSKI and or the estate ofDEFENDANT BETTY ROSE DANIELSKI and suffered by Plaintiff AndrMurray to become payable retroactive to July, 2005 and immediately due.(Please see RECORD ON MOTION BOOK 1 TAB 6 )

56.Plaintiff Andr Murray under theMechanics Lien Actclaims an $80,000 lienupon the estate of Defendant Betty Rose Danielski, P.I.D. 01548650, Propertyaccount number 00506975, civic address 29 and 31 Marshall Street, Fredericton,County of York and Province of New Brunswick. and the following instrumentwas certified on the 16th day of April, 2009, as registered or filed in the YorkCounty registry Office, New Brunswick, and assigned this # 27035311(Please see RECORD ON MOTION BOOK 1 TAB 2 )

57.Marked C is a copy of provided documents, evidence of appointment of aPower of Attorney on behalf of Defendant Betty Rose Danielski. Note: The samePower of Attorney and signing authority for the Lease for subject property andother significant legal documents which have yet to be recovered from 29

Marshall Street, Fredericton.( Please see RECORD ON MOTION BOOK 1 TAB 12 )

58.On January 8, 2010, Plaintiff Andr Murray did attend the office location ofService New Brunswick, on Queen Street, Fredericton, N B. On this occasion didcause to be print Parcel Information for PID number 1548650 (4 pages). Thenoted civic address for these documents is officially recorded as 29 Marshall


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Street, Fredericton. (Is provided and marked as Exhibit D. ( Please seeRECORD ON MOTION BOOK 1 TAB 16 )

59.On January 8, 2010, Plaintiff Andr Murray, did attend the office location ofService New Brunswick, Queen Street, Fredericton, N B. On this occasionPlaintiff Andr Murray did cause to be printed Property Information Report forPID number 1548650 (2 pages). The noted civic address for these documents isofficially recorded as both 29 Marshall Street, and 31 Marshall Street,Fredericton, New Brunswick. (is provided and marked as Marked Exhibit D.Please see RECORD ON MOTION BOOK 1 TAB 16 )

60.Property information as provided by Service New Brunswick, Land Title Office,Queen Street, Fredericton, N B. and as referred to in paragraphs 2 and 3 ofPlaintiff Andr Murrays Affidavit 2, indicate the owner as Defendant Betty RoseDanielski.

61.Plaintiff Andr Murray, On January 8, 2010, did attend the Service NewBrunswick, office location on Queen Street, Fredericton, N B. and did search thePID: 01548650 which is the object of Plaintiff Andre Murrays Claim for Lienand the subject of this Motion before this Honorable Court. The PID Number01548650 referenced a Registered Deed including civic 29 Marshall Street, and31 Marshall Street, Fredericton and indicates Defendant Betty Rose Danielski asthe current Title holder.(A Copy of the subject Deed is provided and marked as Exhibit E.Please see RECORD ON MOTION BOOK 1 TAB 17 )

62.Plaintiff Andr Murray did receive, on or about the 11th day of November, 2009,by way of Xpresspost Canada Post the following correspondence. The subjectcorrespondence was sent from CANADIAN PROCESS SERVING INC. andcontained within the document package was a letter from Process ServerGeorge Mallia, of CANADIAN PROCESS SERVING INC. Toronto Office,Dated November 8, 2009, confirming by way of his Affidavit of Service theService of:

Notice of Action Statement of Claim, Amended Statement of Claim, Claim for Lien Certificate of Pending Litigation.

(A Copy of the cover letter is provided and marked as Exhibit F.

Please see RECORD ON MOTION BOOK 1 TAB 18 )

63. Plaintiff Andr Murray did receive by Canada Post correspondence fromCANADIAN PROCESS SERVING INC., Head Office 142 CatherineStreet South, Hamilton, ON, L8N 2J8, containing Invoice, dated November23, 2009, regarding services rendered, addressed to Plaintiff AndrMurray, 29 Marshall Street Fredericton New Brunswick, R3A 4J8.


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(The subject invoice is provided and marked as Exhibit G. Please seeRECORD ON MOTION BOOK 1 TAB 19 )

64.On October 20, 2009, Plaintiff Andr Murray did send by UPS CanadianServices, UPS Waybill / Tracking number E838 688 798 9, a package

containing: CLAIM FOR LIEN, dated April 16, 2009, CERTIFICATE OF PENDING LITIGATION dated April 21, 2009, (FORM 16 B) NOTICE OF ACTION dated April 21, 2009, (FORM 16C) STATEMENT OF CLAIM dated May 20, 2009, (FORM 16C) AMENDED STATEMENT OF CLAIM dated August

21, 2009

Senders name Murray Andr 29 Marshall Street Fredericton, NB, E3A 4J8 toDefendant Betty Rose Danielski, 166 Carleton Street APT 603, Toronto ON,M5A 2K5. (The subject UPS Waybill / Tracking number E838 688 798 9 is

marked Exhibit H.Please see RECORD ON MOTION BOOK 1 TAB 20 )

65.Plaintiff Andr Murray did access the UPS.com and using UPS PackageTracking number E838 688 798 9, did track shipments of the followingPackages and confirm delivery:

SHIPMENT TO: Defendant Betty Rose Danielski, 166 Carleton Street APT603, Toronto ON, M5A

The receivers Signature is evidenced by the UPS Digital signature printout. The

delivery Notification states According to out records 1 parcel wasdelivered on 10/21/09 at 10:10A.M., and left at RESIDENTIAL. Theshipment was signed for by BETTY as follows:The subject UPS Package delivery notification ismarked Exhibit I.( Please see RECORD ON MOTION BOOK 1 TAB 21 )

66.On October 20, 2009, Plaintiff Andr Murray did send by UPS CanadianServices, UPS Waybill / Tracking number E838 688 792 5, a secondpackage containing:

CLAIM FOR LIEN, dated April 16, 2009,CERTIFICATE OF PENDING LITIGATION dated April 21, 2009,(FORM 16 B) NOTICE OF ACTION dated April 21, 2009,(FORM 16C) STATEMENT OF CLAIM dated May 20, 2009,(FORM 16C) AMENDED STATEMENT OF CLAIM dated August 21, 2009

Senders name A Murray 29 Marshall Street Fredericton, NB, E3A 4J8 toDefendant Betty Rose Danielski, Fudger House (Care of) 439 Sherbourne St.,Toronto ON, M4X 1K6.


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The subject UPS Waybill / Tracking number E838 688 792 5 (is providedand marked as Exhibit J.Please see RECORD ON MOTION BOOK 1 TAB 22 )

67.Plaintiff Andr Murray did access the UPS.com and using UPS Package

Tracking number E838 688 792 5, did track shipments of the followingPackages and did confirm the delivery by these means: SHIPMENT TO: Defendant Betty Rose Danielski, Fudger House Care of 439Sherbourne St., Toronto ON, M4Y.

The receivers Signature is evidenced by the UPS Digital signature printout. Thedelivery Notification states that According to our records 1 parcel wasdelivered on 10/21/09 at 11:42 A.M., and left at RECEPTION. TheShipment was signed for by CELESTIAL as follows:(The subject UPS Package delivery notification is marked Exhibit K.Please see RECORD ON MOTION BOOK 1 TAB 23 )

68.On October 31, 2009 UPS Canadian Services did send to Plaintiff Andr Murraya 3 page Delivery Service Invoice, Invoice Number 000010667A449, ShipperNumber 10667A, regarding the Services charges for delivery of the twoaforementioned (as referred to in paragraphs 51 to 54) UPS packages deliveredto Defendant Betty Rose Danielski.(A copy of the invoice is marked Exhibit L.Please see RECORD ON MOTION BOOK 1 TAB 24 )

69.On or about the first part of April, 2009 Plaintiff Andr Murray did receive aletter signed by Defendant Betty Rose Danielski, addressed to Plaintiff AndrMurray at 29 Marshall Street.(A copy of the subject envelope is provided and marked Exhibit M.Please see RECORD ON MOTION BOOK 1 TAB 25 )

70.Plaintiff Andr Murray did receive a correspondence letter delivered by CanadaPost signed by Defendant Betty Rose Danielski, dated April 1, 2009 addressed toPlaintiff Andr Murray at 29 Marshall Street.(Contents of the letter (a copy) is provided and marked Exhibit N.Please see RECORD ON MOTION BOOK 1 TAB 26 )

71.Plaintiff Andr Murray did sign a FORM 6 STANDANRD FORM OF LEASE(The Residential Tenancies Act, Acts of New Brunswick, 1975, c.T-10.2, s.9)Dated September 1, 2005. The Lease is for the duplex premises bearing both

civic address 29 and 31 Marshall Street, Fredericton, New Brunswick, E3A 4J8.The subject lease is a year to year lease signed by Richard Boileau ContinuingPower of Attorney for Property and agent for Defendant Betty Rose Danielski.(A copy of this Lease is provided and marked as Exhibit O.Please see RECORD ON MOTION BOOK 1 TAB 27 )

72.Plaintiff Andr Murray did discover date April 21, 2009 Defendant Betty RoseDanielski had filed a REVOCATION OF POWER OF ATTORNEY dated May


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29th, 2008, with the Fredericton Property Registry Office. The Revocation ofpower of attorney document revoked the following:

i. A Specific Power of Attorney given by me to Richard MacGregor, ofFredericton, New Brunswick, and dated April 24, 2003.

ii. A Continuing Power of Attorney for Property given by me to RichardBoileau, of Fredericton, New Brunswick, and dated November 14, 2002.

The subject Revocation of power of attorney document is provided: (Please seeRECORD ON MOTION BOOK 1 TAB 28 and marked as ExhibitP).

73.Plaintiff Andr Murray was served, by hand, the 23rd day of October, 2009, athis residence 31 Marshall Street, Fredericton, an Order from the Court of QueensBench, Moncton Trial Division, to vacate, the premises 29 Marshall Street,Fredericton, forthwith, pursuant to an Order dated October 20, 2009. The subjectCourt Order is marked Exhibit Q.( Please see RECORD ON MOTION BOOK 1 TAB 29 )

74.Regarding the eviction from the premises 29 Marshall Street, Frederictonpursuant to an Order dated October 20, 2009 occurring 23rd day of October,2009, an Order from the Court of Queens Bench, Moncton Trial Division, tovacate, forthwith. May it please this Honorable Court Plaintiff Andr Murraywas indeed, forcibly removed from his residence at 29 Marshall Street,Fredericton, before he could remove his belongings and to this date hisbelongings are still on the premises of 29 Marshall Street Fredericton


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CPART III - ISSUES

1. Questions for the Court to answer.

A. Should the Court grant a Continuance of the Mechanics Lien Claim?B. Should the Court grant a Extension of time pursuant to Rule 3.02 of the Rules of

Court,

C. Should the Defendant pay costs of the within Motion

2 Introduction

In this motion, the plaintiffAndr Murray asks for an order under Section 52.1(b)of the Mechanics Lien Actto continue a Mechanics Lien action that was startedon April 21st, 2009.

It is the view of Plaintiff Andr Murray, one of the reasons why the action in thiscase has been delayed is primarily, that the Defendant Betty Rose Danielski hasnot demonstrated any discernable interest in performance of her obligationsaccording to the contractual agreements drawn on her behalf, June, 2005 orthere abouts, nor does Defendant Betty Rose Danielski appear by her actionsand or lack thereof, behave in a sincere manner indicative of a Party interestedin pursuing remedy, pursuant to the Mechanics Lien Act.

The contractual agreements which where agreed to, by both parties, subsequentto this Mechanics Lien Actaction, as early as July, 2005, have been negotiatedto Defendant Betty Rose Danielskis specifications, furthermore, negotiated byher Continuing Power of Attorney for Property Mr. R. Boileau and evidentiallyentirely to Defendant Betty Rose Danielskis financial benefit, as early as July2005.Further, these above, aforementioned contracts between Defendant Betty RoseDanielski and Plaintiff Andr Murray, furthermore, the undertakings and orobligations of Plaintiff Andr Murray, as found within said contracts, have, to

date, on the part of Plaintiff and Contractor Andr Murray been entirely fulfilled.

As a Residential Tenant of the subject property Andr Murray on the one handhas reportedly, (according to Defendant Betty Rose Danielskis own Affidavit)notwithstanding, the Royal Bank of Canada, Bank Teller Documented, cashdeposit receipt history Plaintiff Andr Murray evidentially has, in an unintentionalmanner, paid for Defendant Betty Rose Danielskis entire, alleged, Mortgagepayment obligations from Sept, 2005 up to and including September, 2010.


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Defendant Betty Rose Danielski allegedly elected to go to foreclosure proceduresin the year of 2009, only three Months after Plaintiff Contractor Andr Murrayregistered a Claim for Lien against the subject property.Furthermore, the aforementioned foreclosure procedures in the year of 2009

occurred entirely without Notice to Registered Claim for Lien Claimant AndrMurray, Plaintiff in the matter pursuant to the Mechanics Lien Act, to be heard,before the Honorable Court.

Following the April, 2009 Filing and Registering of a Claim for Lien by PlaintiffAndr Murray against the estate of Defendant Betty Rose Danielski, furthermore,Defendant Betty Rose Danielski did consequentially, authorize the allegedMortgagee, the Royal Bank of Canada, furthermore, Registered Titleholder BettyRose Danielski evoked the Power of Sale Process, that the property, which is thesubject of Plaintiff Andre Murrays Claim for Lien be sold thereby extinguishingPlaintiff Andre Murrays Registered Claim for Lien.

May it please this Honorable Court; the reason for this Motion for a Continuanceto be granted when heard heard before this Honorable Court, furthermore, willhear evidence that Defendant Betty Rose Danielski instructed that the Mortgageeof subject property, the RBC should, without delay, cause the subject propertybe transferred from the estate of Defendant Betty Rose Danielski.

Plaintiff Andr Murray does acknowledge Defendant Betty Rose DanielskisAffidavits including Exhibits found, there within, offering or alluding to theexistence of a Mortgage between the Mortgagee RBC and Defendant Betty Rose

Danielski allegedly beginning year 2000.Further, that the said Mortgage was ending at the termination and or Maturitydate of 2005.Further, Plaintiff Andr Murray has no confirmation of a renegotiated term of thealleged initial Mortgage (beginning year 2000), no confirmation it ever existed inthe first place, however, as such, may or may not be the case, Plaintiff AndrMurray seeks confirmation of the above contentions Regarding the Mortgage,made by Defendant Betty Rose Danielski.

The second reason for the delay, another one of the reasons, why the action inthis case has been delayed is primarily, that the Defendant Betty Rose Danielski,

as Plaintiff Andr Murray verily believes to be true, is that, the Plaintiffs issuesand or Claims for Lien against the Estate of Defendant Betty Rose Danielski arelikely being handled by(The Defendants covert agents, either implied or understood, thought notdirectly expressed) Professionals skillful in influencing or controlling others totheir own advantage, who, to date, have achieved their desired end and


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sidetracked the legitimate Claim for Lien of Plaintiff Andr Murray by the actualFiling(5 Months following Andr Murrays Registration of Claim for Lien)Of an Originating Process in the Court of Queens Bench, Moncton Trial Division;a NOTICE of ACTION September 18, 2009 by the Solicitor for the alleged

Mortgagee and Plaintiff (in that matter)the RBC in the above here withinmentioned Court of Queens Bench, Moncton Trial Division File including aSTATEMENT of CLAIM erroneously claiming:

Unjust Enrichment Wrongful Conversion of Property Occupying the Property without permission or consent.

The Plaintiff, in this matter, the RBC, having been heard October 20, 2009, inCourt of Queens Bench, Moncton Trial Division, was, instead of Proving Proof ofClaim to the numerous erroneous Claims found in their supporting STATEMENTof CLAIM Filed September 18, 2009 for the NOTICE of ACTION, they wereinstead seeking, by way of MOTION an Order to Vacate the premises, bearingCivic address 29 Marshall Street, Fredericton.

Civic address 29 Marshall Street, Fredericton has always been Andr Murraysprimary home and home office, which, includes all Andr Murrays fiscal records,furthermore, 29 Marshall Street, Fredericton has always been the Plaintiff AndrMurrays practical workspace/office space environment.

Until October 23, 2009 all external contact, concerning public or personalcontact, had been directed by Plaintiff Andr Murray to respond or correspond to

Civic address 29 Marshall Street, Fredericton, instead of his alternative residenceat 31 Marshall Street.

Defendant Betty Rose Danielski had good reason to comprehend this fact, as thiswas the address Defendant Betty Rose Danielski always chose to correspondwith Plaintiff Andr Murray by Canada Post.

Furthermore, 29 Marshall Street was the Residence of Defendant Betty RoseDanielski prior to her abandonment of the property in the year 2001.

Plaintiff Andr Murray has reason to believe, there exists a type of secret

agreement, furthermore, Plaintiff Andr Murray has undeniable evidence of acooperative environment transpiring between the parties calling themselvesMortgagee RBC, and the Mortgagor Defendant Betty Rose Danielski including therecent Tentative Purchaser of the Auctioned Mortgagee Deed July 16, 2009 (aninvestment instrument an encumbrance of the subject property).


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May this please the Honorable Court: Plaintiffs in a Originating Process ofSeptember 18, 2009 as aforementioned and found here within, have to date,further, rather than providing Proof of Claim to their many erroneous statementsof claim the Plaintiffs instead chose to Motion the Moncton Trial Division forOrders to Vacate Andr Murray from his Residence at 29 Marshall Street,

Fredericton, N.B.

The Plaintiffs who are allegedly Mortgagees of different degrees of interest, ofthe subject property, which is the same subject property of Plaintiff AndrMurrays Claim for Lien, have to date, succeeded with the Motion for Orders to

Vacate Andr Murray from his Residential Tenancy of civic address 29 MarshallStreet, Fredericton, on a hearing heard without Proper Notice EX PARTE - bythe Honorable Justice Zol R. Dionne at the Court of Queens Bench, MonctonTrial Division October 20, 2009.

October 23, 2009 Sheriffs, without prior Notice, arrived at 31 Marshall Street withimpugned Orders in hand signed by the Honorable Justice Zol R. Dionne at theCourt of Queens Bench, Moncton Trial Division October 20, 2009 that AndrMurray shall be evicted, forthwith from 29 Marshall Street, Fredericton.

The eviction from 29 Marshall Street on October 23, 2009 was unpleasantlydirect and decisively malicious, revealing a desire to harm Tenant Andr Murrayshould the opportunity present itself.

The action included verbal threats and unprovoked Battery.

31 Marshall Street, Fredericton, on October 23, 2009 had the door literallybroken, with the door knob broken entirely off the door, furniture adjacent todoor knocked over, including the widow drapes of the immediate area torn offthe wall. All door locks, where changed for both 29 Marshall Street and 31Marshall Street of this duplex and Andre Murray was physically directed withforce to leave the premises without access to his personal possessions.

Evil, harmful, often untrue statements about Plaintiff Andr Murray which arerevealing of Defendant Betty Rose Danielskis malicious intent appear to haveaffected the judgments of those attending the eviction of Andr Murray.

Plaintiff Andr Murray leading up to the above here within mentioned eviction,has suffered damages to his reputation, falsely charged with malicious intent byDefendant Betty Rose Danielski through unrelenting misrepresentation. This


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occurred blatantly and continuously as of April 2009 and covertly prior to andleading up to that date.

Plaintiff Andr Murray has been defamed numerous times over the past year byDefendant Betty Rose Danielski, by the many aspersions, the unfavorable

charges or insinuations against his character.The deliberate and unrelenting vicious defamation of Plaintiff Andr Murray byDefendant Betty Rose Danielski has had the result of humiliation and bringingdisgrace. This behavior is likely legitimate grounds for a lawsuit.

Plaintiff Andr Murray cannot account for the extreme prejudice with which theSheriffs enforced a rather mundane Order such as an Eviction Order other thanto point at the slanderous characterization of Plaintiff Andr Murray by DefendantBetty Rose Danielski which appears to have conditioned the environment.

Peripheral information is information that is not central to a Plaintiffs currenttask, but provides the reader the opportunity to learn more, to better comprehend,or to keep track of the important issues.

May it Please this Honorable Court Plaintiff Andre Murray has provided by way offax correspondence a Letter addressed to the Defendant for Consent to aContinuance of the Mechanics Lien Action.

In my view, once an action has been set down as contemplated by Section52.1(1)(a) or the action has been continued under Subsection 52.1(b), the one

year time limit no longer applies. After either of these events occurs, thetimeliness of proceeding with the action is in the hands of the Court and can bedealt with in accordance with the Rules of Court.

Rule 1.03 of the Rules of Court states:

(2) These rules shall be liberally construed to secure thejust, least expensive and most expeditious determination of everyproceeding on its merits.


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Parties

3. Owner

Owner New Brunswick Mechanics' Lien Act defines owner as follows:

New Brunswick Mechanics' Lien Act, R.S.N.B. 1973, c. M-6

"owner" means a person having an estate or interest in land upon or inrespect of which work is done or material is furnished at his request,express or implied, and

(a) upon his credit,

(b) upon his behalf,

(c) with his privity and consent, or

(d) for his direct benefit,

and all persons claiming under him whose rights are acquired after thebeginning of the work or the furnishing of the material in respect of whicha lien is claimed;

The New Brunswick Mechanics' Lien Act defines owner as a person having an estate orinterest in land upon or in respect of which work is done or material is furnished at his

request, express or implied. The holder of Title to the 29 Marshall Street and 31 MarshallStreet Property in question is Defendant Betty Rose Danielski as evidence by the Deedregistered at the Land Titles office. ( see RECORD ON MOTION BOOK 1 TAB 17).

Also view a copy of the 6 page Service New Brunswick Print of Parcel Information / PropertyInformation report, dated Aug 8, 2009 which lists the Property Owner to be Defendant BettyRose Danielski ( see RECORD ON MOTION BOOK 1 TAB 16)

4. Power of Attorney

MaximsNemo dat quod non habit. One cannot grant what one does not have


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Injura servi dominum pertingit. The servants wrong doing reaches themaster. The master is liable for injury done by his servant.

Qui facit per alium facit per se A person who acts through another acts ashimself. The acts of an agent are considered the acts of the principle.

Qui per alium facit per seipsum facere videtur A person who does anythingthrough another is considered as doing it himself

Qui facit per alium facit per se He who acts through another is deemed to actin person, i.e., a principal is liable for the acts of his agent.

Nemo potest facere per alium, quod per se non potest No one can do throughanother what he cannot do himself.

A power of Attorney for property was created November 14, 2002, to Richard Boileau by

Title Holder Defendant Betty Rose Danielski. This agency power is evidenced by aCONTINUING POWER OF ATTORNEY FOR PROPERTY document, datedNovember 14, 2002 ( see RECORD ON MOTION BOOK 1 TAB 12 ).

Acting as agent for Defendant Betty Rose Danielski, Power of Attorney RichardBoileau, signed a Residential Tenancies lease with Defendant Plaintiff Andr Murray,dated September 1, 2005 ( see RECORD ON MOTION BOOK 1 TAB 27) regardingTenancy at 29 Marshall Street and 31 Marshall Street, Fredericton New Brunswick.

Acting as agent for Defendant Betty Rose Danielski, Power of Attorney RichardBoileau, signed the contracts authorizing improvements made to the property at 29Marshall Street and 31 Marshall Street, Fredericton New Brunswick.

Furthermore the following excerpt of a Power of Attorney description is given at thefollowing address:http://www.duhaime.org/LegalDictionary/P/PowerofAttorney.aspx

Power of Attorney

A document which gives a person the right to make binding decisions foranother, as an agent.

A sample of a power of attorney is given in the recent case of Egli v Egli.In that case, the judge defines a power of attorney as:

"By a power of attorney, one individual appoints another to act for himor her."

In Re McCarty, Justice Middleton adopted these words:


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"A power of attorney in its strict acceptation, being an authority to the

attorney to do certain specific acts in the name of, and as personallyrepresenting the party granting the power, it seems necessarily to followfrom a consideration of the nature of such a power that it must determine

with the death of the donor."The person signing the power of attorney (POA) is usually referred to, inlaw, as the donor and the person that would exercise the power ofattorney, the attorney or the donee.

However, some jurisdictions prefer the word principal, in deference to thelaw of agency of which POAs are a species.

5. Lien Claimant

New Brunswick Mechanics' Lien Act defines a lien claimant as follows:

New Brunswick Mechanics' Lien Act, R.S.N.B. 1973, c. M-6:

"contractor" means a person contracting with, or employed directly by, theowner or his agent to do work upon or to furnish material for animprovement, but does not include a labourer;

"labourer" means a person employed for wages in any kind of labour,whether employed under a contract of service or not;

"wages" means money earned by a labourer for work done, whether bytime or piece work or otherwise;

"work" includes the doing of work and the performance of services uponor in respect of an improvement, and also includes the breaking of anyland or the clearing of timber or scrub.

4(1) A person who

(a) does, or causes to be done any work upon or in respect of an

improvement, or(b) furnishes any material to be used in an improvement,

for an owner, contractor or sub-contractor has, subject as herein otherwiseprovided, a lien for wages or for the price of the work or material, as the casemay be, or for so much thereof as remains owing to him, upon the estate orinterest of the owner in the land in respect of which the improvement is


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being made, as such estate or interest exists at the time the lien arises, or atany time during its existence.

The Plaintiff Andr Murray has contracted with agent for Defendant Betty RoseDanielski, Richard Boileau to provide work, labour and material which improved the

property at 29 Marshall Street and 31 Marshall Street, Fredericton New Brunswick, asdescribed in the Claim for Lien.

6 FILING OF LIEN

Plaintiff Andr Murray did file on April 16, 2009 at 15:08 a FORM 2 CLAIM FORLIEN, dated April 16, 2009 at the York County Registry Office, New Brunswick. TheDeputy Registrar Evelyn Keddy certified the registration of the Claim for Liendocument and assigned the file number 27035311. ( see RECORD ON MOTION BOOK1 TAB 2)

New Brunswick Mechanics' Lien Act, R.S.N.B. 1973, c. M-6:

FILING OF LIEN

20(1) A claim of lien upon any land or interest therein may be filedin the proper registry office.

The proper registry office is defined further in New Brunswick Mechanics' Lien Act asfollows:

"proper registry office" when used with reference to the filing, dischargingor vacating of a claim of lien or other instrument or document, or of anydealing, relating to or affecting any land, means the registry office of thecounty in which the land is situate;

The Plaintiff Andr Murray asserts that the Claim for lien filed with the York CountyRegistry Office New Brunswick on April 16, 2009 at 15:08 a FORM 2 CLAIM FORLIEN, complies and fulfills the required form.


20(2) A claim of lien shall state

(a) the name and address of

(i) the lienholder,

(ii) the owner, or the person whom the lienholder or his agent believesto be the owner of the land to be charged, and


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(iii) the person for whom, and upon whose credit, the work was or is tobe done, or the material was or is to be furnished;

(b) the date upon which the last work was done or the last materialfurnished, or, where the claim is filed before the work or furnishing of

material is completed, the time or period within which the same is to bedone or furnished;

(c) a short description of the work done, or to be done, or of thematerial furnished, or to be furnished;

(d) the sum claimed as due or to become due;

(e) a description, sufficient for identification, of the land orinterest therein to be charged; and

(f) the date of expiry of the period of credit, if any, given by thelienholder.

20(3) A claim of lien may be made in one of the forms prescribedby regulation and shall be verified by the affidavit of the lienholder or ofhis agent or assignee having personal knowledge of the matters required tobe verified, which affidavit may be in the form prescribed by regulation.

20(5) Every claim of lien shall show an address for service on thelienholder.

22(1) Substantial compliance with sections 20 and 21 is sufficient;and no lien is invalidated by failure to comply with any requirement ofthose sections unless in the opinion of the judge who tries the action, theowner, contractor, sub-contractor, mortgagee, or some other person isprejudiced thereby, and then only to the extent to which he is soprejudiced.

23(1) The Registrar, upon receipt of the proper fee shall file a claimof lien describing it as a "Mechanics' Lien" and shall index the claim oflien in a book to be kept and entitled "Mechanics' Lien Index" and the lienshall appear as an encumbrance against the land or the estate or interest in

land therein described.7 Time for Filling

The Plaintiff Andr Murray asserts that the Claim for lien filed with the York CountyRegistry Office New Brunswick on April 16, 2009 at 15:08 a FORM 2 CLAIM FORLIEN, complies with and is within the time limits set by the New Brunswick Mechanics'Lien Act.


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The New Brunswick Mechanics' Lien Act, R.S.N.B. 1973, c. M-6 states as follows:

24(1) A claim of lien for wages may be filed at any time before theexpiration of thirty days from the doing of the last work for which thewages are owing and the lien claimed.

24(2) A claim of lien for services may be filed at any time before theexpiration of thirty days from the completion of the services.

24(3) A claim of lien for material may be filed at any time before theexpiration of sixty days from the furnishing of the last material the price ofwhich is claimed for.

The subject Claim for lien states the date upon which the last work and materials werefurnished was on or about April 14, 2009. The Date the Claim for Lien was filed wasApril 16, 2009. The difference between these two dates is 2 days, which is well within

the thirty days minimum filing time for wages and for services as well as the sixty dayminimum filing time for material.

8 Action is commenced

The subject Lien Action was commencedAccording to the New Brunswick Mechanics'Lien Act, R.S.N.B. 1973, c. M-6, section 27 which reads as follows:

27 Every lien in respect of which a claim of lien has been filedceases to exist on the expiration of ninety days from the filing of the claimof lien or after the expiry of any period of credit mentioned in the claim of

lien unless, in the meantime, an action is commenced in which the lienmay be enforced, and a certificate of pending litigation in respect thereofissued from the Court in the form prescribed by regulation is registered inthe proper registry office.

The Plaintiff Andr Murray asserts that the CERTIFICATE OF PENDING LITIGATIONCourt File Number F/C/104/09 filed with the York County Registry Office NewBrunswick on April 21, 2009 at 13:22 complies with and is within the ninety days timelimits set by section 27 ofthe New Brunswick Mechanics' Lien Act. The time calculation

in question is 5 days, between the April 16, 2009 filling of the Claim for Lien and theApril 21, 2009 filling of the Certificate of Pending Litigation. The Deputy RegistrarDiana L Tucker certified the registration of the Certificate of Pending Litigationdocument and assigned the file number 27051904. ( see RECORD ON MOTIONBOOK 1 TAB 3)

New Brunswick Rules of Court state as follows:


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16.01 How Proceedings Commenced(1) Unless provided otherwise by an Act, all civilproceedings, except a counterclaim against a plaintiff onlyor a cross-claim, shall be commenced by issuing an originatingprocess.

(2) An originating process is issued when the original,a copy, and the filing fee prescribed by these rules

(a) are delivered to the office of the clerk of the judicialdistrict in which the proceeding is to be commenced,or

(b) are sent by prepaid registered mail or prepaid courieraddressed to the clerk of the judicial district inwhich the proceeding is to be commenced.

16.03 By Statement of Claim or Notice of Action

(1) Unless provided otherwise by these rules, theoriginating process for the commencing of a proceedingshall be a Notice of Action with Statement of Claim Attached(Form 16A).

(2) Where there is insufficient time to prepare aStatement of Claim, an action may be commenced by issuinga Notice of Action (Form 16B) upon which shall beendorsed a brief statement of the nature of the claim; but,unless ordered otherwise, the plaintiff shall file his Statementof Claim (Form 16C) within 30 days of the issuing

of the Notice of Action.

(3) The Notice of Action and Statement of Claimshall be served together in accordance with Rule 16.08(2).

16.07 Clerk on Receipt of Originating ProcessUpon receiving an originating process, a copy, and thefiling fee prescribed by these rules, the clerk shall

(a) assign to the originating process a Court file number,

(b) enface on the original and copy the Court filenumber and the date of issue,

(c) return the original to the plaintiff or applicant, orhis solicitor, and

(d) retain and file the copy.


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The Plaintiff Andr Murray asserts that according to New Brunswick Rules of Court,Rule 16.03(2) the Signed and dated April 21, 2009 (FORM 16 B) NOTICE OF ACTIONCourt File Number F/C/104/09 filed April 21, 2009 with the Court of Queens BenchTrial Division of New Brunswick, is the action specified in the New BrunswickMechanics' Lien Act, R.S.N.B. 1973, c. M-6, section 27 as an action commenced in

which the lien may be enforced. ( see RECORD ON MOTION BOOK 1 TAB 4)

The Plaintiff Andr Murray followed the above mentioned Notice of Action according tothe New Brunswick Rules of Court, Rule 16.03(2) by filling the Signed and dated May 20,2009 (FORM 16C) STATEMENT OF CLAIM Court File Number F/C/104/09 filed May20, 2009 with the Court of Queens Bench Trial Division of New Brunswick. ( seeRECORD ON MOTION BOOK 1 TAB 5)

The Plaintiff Andr Murray did amend the (FORM 16C) STATEMENT OF CLAIM

according to the following New Brunswick Rules of Court:New Brunswick Rules of Court

16.09 Striking Out or AmendingAn originating process which is not a pleading may bestruck out or amended in the same manner as a pleading.

27.10 (2) A party may amend his pleading

(a) without leave, before the close of pleadings, if theamendment does not include or necessitate the addition,

deletion or substitution of a party to the action,

How Amendments Made

27.10 (3) A party who amends a pleading shall file with theclerk a copy of the amended pleading with the changestherein underlined where possible.

The Plaintiff Andr Murray followed the above mentioned Statement of Claim accordingto the New Brunswick Rules of Court, Rule 16.09, 27.10 (2)(a), 27.10 (3) by filling theSigned and dated August 21, 2009 (FORM 16C) AMENDED STATEMENT OF CLAIMCourt File Number F/C/104/09 filed August 21, 2009 with the Court of Queens BenchTrial Division of New Brunswick. ( see RECORD ON MOTION BOOK 1 TAB 6)


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9 Service of Documents

The following are the relevant New Brunswick Rules of Court, regarding Service:

16.08 Time for Service

(2) Where an action is commenced by issuing a Noticeof Action, the Notice of Action and the Statement ofClaim shall be served together within 6 months after theNotice of Action is issued.

Service of Amended Pleading

27.10(4) Unless ordered otherwise, a copy of an amendedpleading shall be served forthwith upon all of the partiesto the action.

Where Personal Service Required

27.10(5) Where the amended pleading is an originatingprocess, service shall be made on all parties whether ornot a party has been noted in default and, if the party to beserved has been served with the original pleading and hasresponded to it, service may be made in any manner setout in Rule 18.

The Plaintiff Andr Murray did cause the Service of the following Documents to occuraccording to New Brunswick rules of Court 16.08, CLAIM FOR LIEN, dated April 16,2009, CERTIFICATE OF PENDING LITIGATION dated April 21, 2009, (FORM 16 B)NOTICE OF ACTION dated April 21, 2009, (FORM 16C) STATEMENT OF CLAIMdated May 20, 2009, and according to Rule 27.10 (4) and 27.10 (5) the (FORM 16C)AMENDED STATEMENT OF CLAIM dated August 21, 2009, within the six monthtime limit requirement by the Rules of Court16.08(2).

The following are the relevant New Brunswick Rules of Court, regarding Service:

18.01 When Personal Service is NecessaryOriginating Process(1) An originating process(a) shall be served personally unless provided otherwiseby an Act or by these rules, and(b) need not be served on a party who has filed andserved a defence.

18.02 How Personal Service Shall be Made


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(1) Personal service shall be made as follows:Individual

(a) on an individual, other than a person under disability,by leaving a copy of the document with him;

18.10 Proof of Service

(1) The service of a document may be proved by anaffidavit of the person effecting such service (Form 18B).

The Plaintiff Andr Murray did cause the Service of the following Documents to occuron Defendant Betty Rose Danielski according to New Brunswick rules of Court 16.08,18.01(a), 18.02(1)(a) and 18.10(1) by acquiring the service of CANADIAN PROCESSSERVING INC, 509 157 Adelaide Street West, Toronto, ON M5H 4E7.

CLAIM FOR LIEN, dated April 16, 2009,CERTIFICATE OF PENDING LITIGATION dated April 21, 2009,(FORM 16 B) NOTICE OF ACTION dated April 21, 2009,

(FORM 16C) STATEMENT OF CLAIM dated May 20, 2009,(FORM 16C) AMENDED STATEMENT OF CLAIM dated August 21, 2009

The AFFIDAVIT OF SERVICE, dated the 9th day of November, 2009, of George Mallia, ProcessServer, of the City of Toronto, in the Province of Ontario stated as follows:

1. On October 19th, 2009, at 7:15 p.m., I personally served Defendant Betty RoseDanielski with the following documents:

a. Claim for Lien

b. Certificate of Pending Litigation

c. Notice of Actiond. Statement of Claim

e. Amended Statement of Claim

by leaving a true copy with her at 439 Sherboure Street, 3rd Floor, Toronto, Ontario M4X1K6.

2. I was able to identify the person by means of verbal acknowledgement.

The above mentioned Affidavit of Service was filled with Court of Queen's Bench ofNew Brunswick, November 30, 2009. ( see RECORD ON MOTION BOOK 1 TAB

1)

Furthermore Plaintiff Andr Murray did send by UPS Delivery Service, prepaidregistered mail, two further copies of:

CLAIM FOR LIEN, dated April 16, 2009,CERTIFICATE OF PENDING LITIGATION dated April 21, 2009,(FORM 16 B) NOTICE OF ACTION dated April 21, 2009,


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(FORM 16C) STATEMENT OF CLAIM dated May 20, 2009,(FORM 16C) AMENDED STATEMENT OF CLAIM dated August 21, 2009

The first UPS package Service, Express Saver, Billed Charge $20.53, tracking numberwas E8386887925, Sender A MURRAY, FREDERICTON NB E3B 5V5, Receiver

BETTY ROSE DANIELSKI, FUDGER HOUSE CARE OF TORONTO ON M4X 1K6.( see RECORD ON MOTION BOOK 1 TAB 22 and 24 ) Proof of service was byway of signature in accordance with to Rule 18.03 (4)(c). ( see RECORD ON MOTIONBOOK 1 TAB 23)

The Second UPS package Service, Express Shipment, Billed Charge $37.63, trackingnumber was E8386887989, Sender MURRAY ANDR, FREDERICTON NB E3B 5V5,Receiver BETTY ROSE DANIELSKI, TORONTO ON M5A 2K5. ( see RECORD ONMOTION BOOK 1 TAB 20 and 24 ) Proof of service was by way of signature inaccordance with to Rule 18.03 (4)(c). ( see RECORD ON MOTION BOOK 1 TAB 21)

The following are the relevant New Brunswick Rules of Court, regarding Service byPrepaid Mail or Prepaid Courier:

18.02 How Personal Service Shall be Made(1) Personal service shall be made as follows:Individual

(a) on an individual, other than a person under disability,

by leaving a copy of the document with him;

18.03Service by Prepaid Mail or Prepaid Courier(3) Where personal service of a document may be

made by leaving a copy with a person pursuant to Rule18.02(1), such service may be made anywhere in Canadaby sending a copy of the document, together with an Acknowledgementof Receipt Card (Form 18A), by prepaidmail or prepaid courier addressed to the person at the lastknown address of the person.

(4) Service by prepaid mail or prepaid courier shallbe deemed to have been effected only if any one of the followingis returned to and received by the sender:

(a) the Acknowledgement of Receipt Card bearing a

signature which purports to be the signature of the personto whom the document was sent;

(b) a post office receipt bearing a signature whichpurports to be the signature or a copy of the signatureof the person to whom the document was sent;

(c) any other form of acknowledgement of receipt in


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writing bearing a signature which purports to be thesignature or a copy of the signature of the person towhom the document was sent; or

(d) confirmation in writing from the carrier that thedocument was delivered to the person to whom the

document was sent.

(5) Service by prepaid mail or prepaid courier shallbe deemed to have been effected on the date the sender receivesa receipt or confirmation under paragraph (4).

10 Order continuing the action

Application has been made to a judge of The Court of Queen's Bench of New Brunswickfor an order continuing the action pursuant to New Brunswick Mechanics' Lien Act,

R.S.N.B. 1973, c. M-section 52.1(1)(b).


52.1(1) An action to enforce a lien shall be deemed to be discontinuedone year after the action is commenced unless

(a) the action has been set down for trial, or

(b) an application has been made to a judge of The Court of Queen'sBench of New Brunswick for an order continuing the action and a copy of

the notice of application has been served on the defendant to the action.

52.1(2) In ordering the continuance of an action, the judge mayimpose such terms and conditions and give such directions as the judgeconsiders appropriate for the continuation of the action.

On April 20, 2010, Plaintiff Andr Murray Filed a Notice of Motion (Form 37A) withthe Court of Queens Bench Trial Division Fredericton, New Brunswick, for an ordercontinuing the New Brunswick Mechanics' Lien action pursuant to New BrunswickMechanics' Lien Act, R.S.N.B. 1973, c. M-section 52.1(1)(b). ( see RECORD ONMOTION BOOK 1 TAB 8 ).

The Plaintiff Andr Murray requests that the Court may, on such terms as may be just, extendthe time prescribed on the New Brunswick Mechanics' Lien Act, R.S.N.B. 1973, c. M-section 52.1(1)(b), pursuant to the New Brunswick New Brunswick Rules of Court 3.02Extension or Abridgment.

New Brunswick Rules of Court


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3.02 Extension or Abridgment(1) Subject to paragraphs (3) and (4), the Court may,on such terms as may be just, extend or abridge the timeprescribed by an order or judgment or by these rules.

(2) A motion for extension of time may be made eitherbefore or after the expiration of the time prescribed.

(3) Where the time prescribed by these rules relatesto an appeal, only a judge of the Court of Appeal maymake an order under paragraph (1).

(4) Any time prescribed by these rules for serving,filing or delivering a document may be extended orabridged by consent.

A copy of the notice of Motion has been served on the defendant to the action pursuant tosection 52.1(1)(b). ( see RECORD ON MOTION BOOK 1 TAB 7 ).

A copy of the Notice of Motion, signed, dated and filed April 20, 2010 and supportingAffidavit of Plaintiff Andr Murray signed, dated and filed April 20, 2010 has beenserved on the Defendant to the action, Defendant Betty Rose Danielski by way of FaxService, according to New Brunswick Rules of Court Rule 18.07 (2) Service on Solicitorof Record, to the Defendants Solicitor E. Thomas Christie, QC . by telephonetransmission, verified successful, to Fax number 472 2091.

The Affidavit of Service (Form 18B), of Plaintiff Andr Murray was signed, dated andfiled April 20, 2010 with the Court of Queens Bench Trial Division Fredericton, NewBrunswick. This Affidavit of Service stated that Plaintiff Andr Murray served Solicitorfor Defendant Betty Rose Danielski, E. Thomas Christie, QC with the attacheddocuments, namely a copy of the Notice of Motion, signed, dated and filed April 20,2010 and supporting Affidavit of Plaintiff Andr Murray signed, dated and filed April 20,2010, at 3:48P.M. to Fax number (506) 472 2091 by telephone transmission, verifiedsuccessful, according to the attached transmission Verification Report, Serial number#000H6J423935.

The relevant New Brunswick Rules of Court regarding Service on Solicitor of Record and

proof of Service are as follows:

18.07 Service on Solicitor of Record(1) Where service of a document on the solicitor ofrecord for a party is authorized or required by these rules,the document may also be served(a) by leaving a copy with an employee in the officeof the solicitor, or


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(b) by telephone transmission producing a facsimileof the document in the office of the solicitor in accordancewith paragraph (2).

(2) A document served by telephone transmission

shall include a cover page indicating

(a) the name, address and telephone number of thesender,

(b) the name of the solicitor to be served,

(c) the date and time of transmission,

(d) the total number of pages transmitted, includingthe cover page,

(e) the telephone number from which the document istransmitted, and

(f) the name and telephone number of a person tocontact in the event of transmission problems.

18.10 Proof of Service(1) The service of a document may be proved by anaffidavit of the person effecting such service (Form 18B).

11 Example litigation - Stare Decisis

STARE DECISISfound at:( http://www.lectlaw.com/def2/s065.htm)

Lat. "to stand by that which is decided." The principal that the precedentdecisions are to be followed by the Courts.

To abide or adhere to decided cases. It is a general maxim that when apoint has been settled by decision, it forms a precedent which is not

afterwards to be departed from. The doctrine of stare decisis is not alwaysto be relied upon, for the Courts find it necessary to overrule cases whichhave been hastily decided, or contrary to principle. Many hundreds of suchoverruled cases may be found in the American and English books ofreports.


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An appeal Court's panel is "bound by decisions of prior panels unless anen banc decision, Supreme Court decision, or subsequent legislationundermines those decisions." United States v. Washington, 872 F.2d 874,880 (9th Cir. 1989).Although the doctrine of stare decisis does not preventreexamining and, if need be, overruling prior decisions, "It is . . . a

fundamental jurisprudential policy that prior applicable precedent usuallymust be followed even though the case, if considered anew, might bedecided differently by the current justices. This policy . . . 'is based on theassumption that certainty, predictability and stability in the law are themajor objectives of the legal system; i.e., that parties should be able toregulate their conduct and enter into relationships with reasonableassurance of the governing rules of law.'" (Moradi_Shalal v. Fireman'sFund Ins. Companies (1988) 46 Cal.3d 287, 296.) Accordingly, a partyurging overruling a precedent faces a rightly onerous task, the difficulty ofwhich is roughly proportional to a number of factors, including the age ofthe precedent, the nature and extent of public and private reliance on it,

and its consistency or inconsistency with other related rules of law.

Maxim

Argumentum ab auctoritate fortissimum est in lege - An argument drawn fromauthority is the strongest in law.

In J.K. Dineen v. Morris Music, 2004 NBQB 43 (CanLII) Justice William T. Grant.granted continuance according to rule 52.(1)(b), found at

(http://www.canlii.org/en/nb/nbqb/doc/2004/2004nbqb43/2004nbqb43.html) ( seeThe

Plaintiffs Submission SCHEDULE C LISTED AUTHORITIES FULLDISCISION CITED) as follows;

[1] In this motion, the plaintiff asks for an order under Section52.1(b) of the Mechanics Lien Act to continue a Mechanics Lienaction that was started on January 20th, 2003.

[4] The second reason advanced by the defendant to oppose the

motion is that there is no good reason given by the plaintiff toallow it. Section 52.1(b) gives the Court discretion to ordercontinuation of an action that has not been set down for trial withina year of being commenced. Whether or not the Court will exercisethat discretion will depend on the reasons given for the delay bythe plaintiff as well as any prejudice that may result to thedefendant, if such an order is made.


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[6] The affidavit of the defendants solicitor, Mr. Boss, inopposition to the motion does not reveal any prejudice that wouldresult to the defendant if the order is made. It does reveal that

much has happened on the file since October 10th

, 2003 and thatthe action should be ready to be set down for trial reasonablysoon. Mr. Boss argued both in his brief and here in Court thismorning that if the action is continued, the defendants land will beencumbered, limiting its ability to sell but there is no evidencebefore the Court of any pending sale or other conveyance that isbeing jeopardized at present by the lien.

[7] Given all those factors, I hereby allow the motion and,

pursuant to Section 52.1(b) of the Act, I order that the action becontinued on the condition that the plaintiff set it down for trial bythe May, 2004 motions day; otherwise it will be deemed to bediscontinued. I am not going to make any order for costs in thecircumstances.

In this motion before the Court, the Plaintiff Andr Murray asks the Honorable Court toexercise the Courts discretion for an order under Section 52.1(b) of the Mechanics LienAct to continue a Mechanics Lien action that was started on April 21st, 2009. Thereason the extension is requested is because of the adversity the Plaintiff Andr Murray isexperiencing in attempting to overcome the Plaintiff Andr Murrays position with theRoyal Bank of Canada. If the Royal Bank of Canada consented to Plaintiff Andr Murrayre-entering 29 Marshall Street, Fredericton New Brunswick then there would not be arequest to this Court for an order under Section 52.1(b) of the Mechanics Lien Act tocontinue a Mechanics Lien action.

Adversity is defined at:( http://mw2.merriam_webster.com/dictionary/adversity ) asfollows:

adversity

Main Entry: adversityPronunciation: \ad_?v?r_s?_te_\Function: nounInflected Form(s): plural adversi tiesDate: 13th century

: a state, condition, or instance of serious or continued difficulty or adversefortune


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synonyms see misfortune

The Defendant Betty Rose Danielski has directly caused the situation which the PlaintiffAndr Murray now finds himself in, which is namely; the Plaintiff Andr Murray isunable to access the subject document necessary to move forward with the Mechanics

Lien Action, until such time as the Courts grant access of 29 Marshall Street to thePlaintiff Andr Murray. ( see Copy of the Order from the Court of Queens Bench TrialDivision, Moncton, dated October 20th, 2009 at RECORD ON MOTION BOOK 1 TAB 29 )

It is unjust that the Defendant Betty Rose Danielski should be benefited by the delays thatshe herself has caused.

MaximThe law will not intend a wrong., Bacon's Maxims (17, reg. 3)

It is only fair and in the interest of Justice that the Court grants a Continuance in thepresent circumstances.

12 Costs

The Plaintiff Andr Murray asks the Honorable Court to exercise the Courts discretionfor an order for costs. Had the Defendant Betty Rose Danielski consented to a ConsentOrder, there would have been no reason to bring this Motion for a Continuance of theMechanics' Lien Action, before the Court and hence the expense for both partiesunnecessary. (see copy of the Letter at RECORD ON MOTION BOOK 1 TAB 33 ).The Letter requesting Consent to a Continuance was served on Solicitor for DefendantBetty Rose Danielski, E. Thomas Christie, QC on May 31, 2010. ( see copy of the Affidavitof Service of the subject Letter, Dated May 31, 2010, at RECORD ON MOTION BOOK 1 TAB 32 )


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D

PART VI ORDERS SOUGHT

a) That, pursuant to section 52.1 (1) (b) of the Mechanics' Lien Act, this action becontinued until October 21, 2010 or further Order of this Court,

b) That the Court grant a Extension of time pursuant to Rule 3.02 of the Rules ofCourt,

c) That the Defendant pay costs of the within Motion,

d) Such further and other relief as to this Honorable Court may appear just.

ESCHEDULE A LISTED AUTHORITIES

1. Mechanics' Lien Act, R.S.N.B. 1973, c. M-6 (CanLII)__________

2. J.K. Dineen v. Morris Music, 2004 NBQB 43 (CanLII)_________

3. The New Brunswick Rules of Court atwww.gnb.ca/0062/regs/Rule/rule_list.htm ___________________

4. www.lectlaw.com ______________________________________

5. www.duhaime.org _____________________________________


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F

SCHEDULE B TEXT OF RELEVANT PROVISIONS OFSTATUTES OR REGULATIONS

Maxims

a. Nemo dat quod non habit. One cannot grant what one does not have

b. The law will not intend a wrong., Bacon's Maxims (17, reg. 3)

c. Argumentum ab auctoritate fortissimum est in lege - An argument drawn

from authority is the strongest in law.d. Injura servi dominum pertingit. The servants wrong doing reaches the

master. The master is liable for injury done by his servant.

e. Qui facit per alium facit per se A person who acts through another actsas himself. The acts of an agent are considered the acts of the principle.

f. Qui per alium facit per seipsum facere videtur A person who doesanything through another is considered as doing it himself

g. Qui facit per alium facit per se He who acts through another is deemed toact in person, i.e., a principal is liable for the acts of his agent.

h. Nemo potest facere per alium, quod per se non potest No one can dothrough another what he cannot do himself.

i. Caveat emptor (Hob. 99) _ "let the purchaser beware" applies to apurchaser of property whether or not a Mortgage exists.

j. No rule of law protects a buyer who willfully closes his ears toinformation, or refuses to make inquiry when circumstances of gravesuspicion imperatively demand it

Relevant New Brunswick Rules of Court state as follows:

Source: http://www.gnb.ca


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Rules of Court.

Rule 1.03 of the Rules of Court states:

(2) These rules shall be liberally construed to

secure the just, least expensive and most expeditiousdetermination of every proceeding on its merits.

PRELIMINARY MATTERSRULE 2NON-COMPLIANCE WITH THE RULES

2.01 The Court Dispensing with ComplianceThe Court may at any time dispense with compliancewith any rule, unless the rule expressly or impliedly providesotherwise.

2.02 Effect of Non-ComplianceA procedural error, including failure to comply withthese rules or with the procedure prescribed by an Act forthe conduct of a proceeding, shall be treated as an irregularityand shall not render the proceeding a nullity, and allnecessary amendments shall be permitted or other reliefgranted at any stage in the proceeding, upon proper terms,to secure the just determination of the matters in disputebetween the parties. In particular, the Court shall not setaside any proceeding because it ought to have been commencedby an originating process other than the one employed.

2.03 Attacking the Regularity of ProceedingsA motion to attack a proceeding for irregularity shall bemade within a reasonable time, and shall not be allowed ifthe party applying has taken a further step in the proceedingafter having knowledge of the irregularity.

2.04 Where No Procedure ProvidedIn any matter of procedure not provided for by theserules or by an Act the Court may, on motion, give directions.

3.02 Extension or Abridgment(1) Subject to paragraphs (3) and (4), the Court may,on such terms as may be just, extend or abridge the timeprescribed by an order or judgment or by these rules.(2) A motion for extension of time may be made eitherbefore or after the expiration of the time prescribed.(3) Where the time prescribed by these rules relatesto an appeal, only a judge of the Court of Appeal maymake an order under paragraph (1).


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(4) Any time prescribed by these rules for serving,filing or delivering a document may be extended orabridged by cons

June 7, 2010, Complete Brief 1, used for First Hearing FC.104.09

Documents

Transcript of June 7, 2010, Complete Brief 1, used for First Hearing FC.104.09