The case Xemex Contracting Inc v. Koor Energy Ltd (2023 ABKB 577) revolves around a builder's lien filed by Xemex Contracting Inc. against a building owned by Aspen Properties (Northland Place) Ltd. The dispute involves whether Aspen, as the fee simple owner, should be subject to the lien for work done on the premises leased by Koor Energy Ltd, a tenant who failed to pay Xemex for renovation services.
Key points from the case:
- Lien Validity: Xemex registered the lien after not receiving payment for work done under its contract with Koor Energy Ltd. The Applications Judge found Aspen to be an "owner" under Alberta’s Prompt Payment and Construction Lien Act based on its active participation in the renovation project.
- Appeal Basis: Aspen appealed, arguing it was not an "owner" since its involvement was limited to protecting the building and other tenants rather than facilitating the renovation for its direct benefit.
- Standard of Review: The appeal was reviewed on the standard of correctness. Aspen challenged the interpretation of its involvement as sufficient to establish ownership under the Act.
- Decision: The Court allowed the appeal, ruling that Aspen's involvement did not meet the criteria for "direct benefit," as the incomplete renovation left the premises in disarray, and further investment would be needed to market the space. No monetary award was specified.
Ultimately, the lien was declared invalid due to the lack of direct benefit to Aspen from the incomplete renovations.
