The registrant completed 55% of the construction work on a golf course, for which it was not paid. A key sponsor of the project had died, and the work was interrupted. The registrant registered a legal hypothec on the land for $1.2 million, which it later withdrew on a settlement with the successor to its client. The Court affirmed the Minister's finding that the registrant owed GST on $1.2 million. In order to be entitled to register a hypothec, a claimant must have already demanded payment . It followed under s. 152(1) that payment was due to the registrant by the time the hypothec was registered.
The Court also noted in the alternative that the trial judge erred in finding that, because the work was only 55% completed, there was no undue delay in issuing an invoice. The trial judge had essentially applied the test in s. 168(3)(c) that consideration is not due until work is "substantially completed." Although s. 168(3)(c) only applies where there is an agreement in writing, she found that it was was reasonable to apply the same test in these circumstances. Before concluding that, in these circumstances, an invoice should have been issued for the partially completed work, Noël J. stated (at paras. 32-33):
The difficulty this reasoning raises is that according to the very terms of paragraph 152(1)(b), the issuing of an invoice may be unduly delayed even if the work has only been partially completed, since the provision speaks of an invoice "in respect of the supply for that consideration or part."
... [The trial judge] had to question whether, according to the evidence, an invoice had to be issued for the purpose of paragraph 152(1)(b) for the part of the work that had been carried out.