Court rejects bid to strike down lien claim

The Yukon Court of Appeal has dismissed an attempt by Ross Mining’s owner to strike out Golden Hill Ventures’ lien claim against the Dominion Creek placer mine.

The Yukon Court of Appeal has dismissed an attempt by Ross Mining’s owner to strike out Golden Hill Ventures’ lien claim against the Dominion Creek placer mine.

In November 2005, Norman Ross sold Ross Mining Ltd. to a company controlled by Golden Hill Ventures owner Jon Rudolph for $9 million.

In January 2009, Golden Hill defaulted on its payment schedule, and a few months later, ownership of the mine was transferred back to Ross.

Shortly after the sale in 2005, Golden Hill loaned Ross Mining several million dollars. It also entered into an agreement with the mining company whereby Golden Hill would perform work on the mine and would be set off from the amount Ross Mining owed to Golden Hill.

So, in August 2009, Rudolph put a lien on Ross Mining, claiming Golden Hill had loaned the mining company $4,713,543.

Two months later, Rudolph filed an amended claim, raising the amount to $6,790,456.

In December of that year, Yukon Supreme Court Justice Ron Veale struck out the amended claim of lien because it was filed outside the statutory 45-day period.

Veale also disagreed with Ross’ lawyer Murray Leitch’s argument that the lien claim was bound to fail and should be struck out.

Ross then appealed that dismissal in the Yukon Court of Appeal, and a decision on the appeal was released Monday.

In a decision written by Madam Justice Nicole Garson, and concurred by Madame Justices Mary Saunders and Elizabeth Bennett, Garson says Ross Mining owner Norman Ross has grounds to bring his argument to trial, but she dismisses his appeal of Veale’s refusal to strike out the claim.

The documents say Leitch argues the claim must fail because the amounts owed to Golden Hill were in respect to a loan, not for work and services, which Golden Hill says it provided.

“The appellant has tendered evidence on the application that may well succeed at trial in persuading a judge that the whole claim is a debt claim and not one for work and services, and cannot succeed as mining claim,” says Garson.

However, that issue must be determined by a trial judge who must weigh and assess the evidence, Garson adds.

Leitch also argues the claim must fail because Golden Hill’s petition was filed in support of the struck amended claim, not the original claim, and therefore the petition should also be struck out.

Garson says the second ground of appeal cannot be sustained.

“I agree the petition is not a picture of clarity, but it specifically references and attaches the original mining lien claim,” she says.