Gill v. Dulay and Shahi Date:, 2011 BCPC 126

Citation: Gill v. Dulay and Shahi Date: 20110105 2011 BCPC 0126 File No: 2008-21547 Registry: RICHMOND IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: RUMESH GILL CLAIMANT AND: AMRITPAL DULAY and ANUP SHAHI DEFENDANTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE P. CHEN Appearing in person: Rumesh Gill Counsel for the Defendants: H. Nirwan Place of Hearing: Richmond , B.C. Date of Judgment: January 5, 2011 [ 1 ] This is the difficulty with these construction cases. Everything done was on a handshake.

There was not a lot of written documentation and people are now trying to remember what happened four or five years ago. Of course there is a direct conflict in evidence between the claimant and the defendants' witnesses on a number of things. However, what is not in dispute is that the claimant did deliver lumber for the construction of a house at 10431 No. 2 Road. [ 2 ] The claimant testified that he was paid some of the costs, but was not paid for all the lumber that he delivered. [ 3 ] The defendants submit firstly that the claimant sued the wrong party, that he should have sued Mr.

Nirmal Dulay because he was the one that contracted to buy this lumber. Secondly, the defendants submitted that even if the contract was with the defendants, the claimant has been paid in full, or has not succeeded in proving that he has not been paid in full. [ 4 ] Would that be a fair characterization? [ 5 ] MR. NIRWAN: Yes, Your Honour. [ 6 ] THE COURT: Thank you, Mr. Nirwan. I suppose we should first deal with the issue, whether the defendants are the correct parties to be sued. [ 7 ] This was an unconventional situation. The defendants testified that Mr. Nirmal Dulay, the father of Ms.

Amritpal Dulay, one of the joint owners of the property and a defendant in this proceeding, was the contractor for the construction of this house. [ 8 ] However, I find, on the evidence that has been adduced, that Mr. Nirmal Dulay was not a contractor for the property in the conventional sense. He had never built a house before, had never been a contractor in the construction industry, and had done no contracting work since this house was built. I suppose that does not preclude him from being a contractor for this particular property, but was he?

I do not find any evidence that he represented himself to be a contractor to the claimant. I do not recall hearing any evidence of him saying, "I am a contractor for this job." There was evidence that he said, “I am building a house for my daughter," but I am not

persuaded that makes him a contractor. There was no evidence that he scheduled things. He was not on site all the time. There was no evidence that Mr. Nirmal Dulay provided for the usual deficiency holdbacks or lien holdbacks, or administered any trust fund under the Builders Lien Act . At the end of his evidence, when I asked whether he knew how much lumber had been delivered by the claimant, Mr. Gill, to the property, he said “no”. Usually a contractor would be on top of such things. He would know how much lumber had been delivered.

He would also have some responsibility to the owner, I would think, to keep track of how much had been delivered and how much had been paid for. [ 9 ] I am not persuaded that Mr. Nirmal Dulay was a contractor. [ 10 ] It is clear from the evidence that the owners of the property on which the house is built, and the owners of this house, are the defendants, Anup Shahi and Amritpal Dulay. They are the only people that own this property. [ 11 ] There was evidence from Ms.

Dulay that because her parents had paid most of the money, this was really her parents' house and that she would be prepared to transfer it to them if requested. [ 12 ] Mr. Nirmal Dulay testified that Ms. Dulay and her husband had owned another property in another location, had sold that property and put the proceeds from that sale into the joint account that Ms. Dulay had with her mother. He also testified that some of the payments came out of that joint account for the construction of the house.

He was not clear how much money in that account was his wife's and how much was his daughter's; however, it is clear that the proceeds of the sale of the defendants' house was in that joint account. [ 13 ] There were four cheques produced by the claimant, one of which was clearly in the name of Mrs. Dulay, Sr. Three cheques had Ms. Dulay's name at the top but were written on the joint account owned by mother and daughter Dulay. Ms.

Dulay did confirm that she would provide cash to her father to be given to the claimant (and I presume for other trades as well) from time to time. [ 14 ] As is not uncommon in such cases, it would have been helpful to the court if there were more evidence and if there were better evidence. However, the evidence is what it is, and the court has to rely on the best evidence that it has. [ 15 ] The claimant's evidence was that Mr. Nirmal Dulay had said to him that he was acting as agent for his daughter. That was not Mr.

Nirmal Dulay's evidence, so there is a direct conflict there. [ 16 ] At the end of the day, it is a bit of a tangled web, but I am satisfied that the beneficiaries of the material that was supplied by the claimant were the defendants. It is a house on a property that is owned by the two of them. [ 17 ] As such, I find that either on the basis of quantum meruit or on the basis of a contract, that there is an obligation from the defendants to pay for the lumber that was supplied for that property. [ 18 ] I find in fact that there was a contract between the claimant and the defendants. I also find that Mr.

Shahi and Mrs. Dulay were clearly the beneficiaries of whatever arrangement existed with respect to the claimant's delivery of material, and that at least some of the payments were made by Ms. Dulay. [ 19 ] With respect to whether or not the monies have been paid, particularly if Mr. Nirmal Dulay was acting in any way as contractor, or even as a consultant, he and the defendants should have kept a record of what was delivered, and what was paid and what was not. Clearly, a lot of payments were made in cash.

According to the claimant, some payments were made in American funds, which had to be converted to Canadian equivalent, according to the exchange rate existing at the time. The defendants had no evidence at all as to the value of the lumber that was supplied.

The only evidence I have as to the lumber that was supplied comes from the claimant. [ 20 ] It is not a perfect situation, but I am afraid that the best evidence I have is that this was the lumber that was supplied, that these were the monies that were paid, and that there is a balance outstanding. [ 21 ] Accordingly, I give judgment to the claimant in the amount of $5911.08. The claimant will also have his costs in the amount of $156 filing fee, $60 in service fees, for a total of $216.