Chandos Construction Ltd. (“Chandos”), a general contractor, brought an Application under section 48 of the Builders’ Lien Act, RSA 2000 c B-7, but styled it as a Summary Judgment Application by referring to Rules 7.2, 7.3 and 7.4. The Application was to reduce or eliminate the security provided by Chandos who had secured a lien claim registered by the Respondent framing contractor, Buildtech Framing Inc. (“Buildtech”).

The parties disputed the amount of back charges Chandos had charged to Buildtech. Chandos argued that counsel for Buildtech had failed to cross-examine Chandos’ representative about the back-charges, and then put evidence before the Court in their reply Affidavit. The issue for the Court was whether the rule in Browne v Dunn, 6 R 67 (HL 1863) applied to Summary Judgment Applications: must the Respondent to the Application cross-examine the Applicant’s witness first before filing a contradictory Affidavit?

Master Robertson held that the rule in Browne v Dunn did not apply to Summary Judgment. It exists for the benefit of weighing evidence, which the Court does not do on a Summary Judgment Application. Where the evidence is contradictory and the credibility of a witness is part of the real dispute, a Trial is necessary. In this case, regardless of the applicability of the rule in Browne v Dunn, it was clear that the claims for the back charges were in dispute and a Trial was necessary. Master Robertson held that the existing record left too many questions unanswered and dismissed the Application for Summary Judgment.