Court of Appeal File Number: 82 10 - CA (Court File Number: F/C/104/09)

IN THE COURT OF APPEAL OF NEW BRUNSWICK BETWEEN: ANDRE MURRAY APPELLANT (Plaintiff ) -andBETTY ROSE DANIELSKI

RESPONDENT (Defendant)

Appellants Submission Filed by self represented

APPELLANT ANDRE MURRAY

Andr Murray APPELLANT (Plaintiff) 31 Marshall Street, Fredericton, New Brunswick, E3A 4J8 Telephone Number: (506) 472 - 0205 E-mail address: andremurraynow@ gmail.com

Solicitor for RESPONDENT (Defendant) Betty Rose Danielski E. Thomas Christie, QC CHRISTIE LAW OFFICE Suite 306, 212 Queen Street Fredericton, New Brunswick Canada E3B 1A8 Tel: (506) 472 2090 Fax: (506) 472 2091 E-Mail: tclaw@nb.aibn.com

Betty Rose Danielski RESPONDENT (Defendant) Apt 603 166 Carlton Street Toronto, Ont. M5A 2K5

Appellants Submission (Rule 62.14) INDEX of the contents Page

a) Part I - An index of the contents; _______________________________ b) Part II -A concise statement of all relevant facts with such references to the evidence as may be necessary;___________________ c) Part III - A concise statement setting out clearly and particularly in what respect the order or decision appealed from is alleged to be wrong;_____________________________________________________ d) Part IV - A concise statement of the argument, law, and authorities relied upon;_________________________________________________ 1) Rule 1.03 Interpretation_____________________________________

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2) Rule 39.01 Evidence on Motions________________________ 3) Rule 39.04 Service of Affidavits_____________________________ 4) Rule 2.03 Attacking the Regularity of Proceedings_______________ 5) Maxim -Audi Alteram Partem -Latin; literally 'hear the other side'.______________________________________ 6) Maxim - Nemo Judex In Parte Sua- Latin: no person can judge a case in which he or she is party or in which he/she has an interest.____________________ 7) Regarding Order Sought________________________________
e) Part V - A concise statement of the order sought from the Court of Appeal, including any special disposition with regard to costs;_________ f) Schedule A - A list of authorities in the order referred to in the Submission; and_____________________________________________ g) Schedule B - The text of all relevant provisions of Statutes or Regulations (or copies of the complete Statute or Regulation may be filed and served with the Submission).____________________________

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Appellants Submission PART II STATEMENT OF FACTS 1. Andr Murray Plaintiff April 20, 2010 filed a Motion Amended May 31, 2010, with Court of Queens Bench Fredericton Trial Division heard June 10, 2010, for orders: a) That, pursuant to section 52.1 (1) (b) of the Mechanics' Lien Act, this action be continued until October 21, 2010 or further Order of this Court,

b) That the Court grant a Extension of time pursuant to Rule 3.02 of the Rules of Court, c) That the Defendant pay costs of the within Motion,

d) Such further and other relief as to this Honorable Court may appear just. 2. The Motion, aforementioned herein above, heard before the Honorable Madam Justice a) That, pursuant to section 52.1 (1) (b) of the Mechanics' Lien Act, this action be continued until October 21, 2010 or further Order of this Court, 3. It is discretionary upon the Honorable Court as to the granting of such Orders pursuant to

Paulette Garnett would not allow the following listed Order, onto the Court Record:

section 52.1 (1) (b) of the Mechanics' Lien Act, R.S.N.B. 1973, c. M-6, 4. The Motion scheduled for a day before the Honorable Madam Justice June 10, 2009,

actual duration of first Court session was 9 minutes, went to recess, returning same day for second Court session of 11 minutes as the learned Trial Judge interrupted Plaintiff Andr Murray in his only opportunity to speak, as Honorable Madam Justice verbalized The end! 5. The Plaintiff expecting a crafted Order, including a comprehensive decision from

Honorable Madam Justice Paulette Garnett instead Plaintiff received RECORD ON MOTION cover page, bearing a perimeter drawn diagonally across centre of page with hand written words inside stating nothing more than Motion dismissed No cost. PCG June 10/10. 6. The learned Trial Judge, as above, has never provided a Decision or reasoning

attributed to the words Motion dismissed. No Reason a Decision has never been provided. Part III 7. The learned trial Judge erred in law in not keeping with the general direction as found

expressed in the New Brunswick Rules of Court Rule 1.03 (2) , rather than allowing onto the Court record any of the voluminous evidentiary affidavit material filed with the Honorable Court and or without allowing argument from the parties to the Motion the Court Adjourned

for 15 minutes (became one hour) Solicitor for Defendant, as directed by the Court left the Hearing to search by telephone for answers to Madame Justices leading questions. Please note; prior to recess only 9 minutes into the Hearing of the Motion, (originally scheduled for a day) Madam Justice dominated, the initial 9 minute hearing as all submissions on record were those of Madam Justice except for replies to her questions. Arguments from Plaintiffs or Defendants were not being allowed. 8. The learned trial Judge erred in law in the impugned Order, the aforesaid contention, that

any Party to an Action could reasonably be instructed by the Court to take leave, to then, as directed by the Honorable Court, contact by telephone: two parties known adversarial to the final outcome. Moreover, the incredulous and or implausibility, that, upon returning from the assigned subject antecedent telephone mission, the resultant answers could not possibly be unbiased, independently meritorious and or admissible substantive material before the Court, appeared to be an easily perceived and obvious error in law. 9. The learned trial Judge erred in law in, Ordering a 15 minute adjournment of a Hearing

(Which is a serious error in the proceeding.) that irrelevant hearsay may be collected, then placed onto Court Record not SWORN TO by Affidavit. Hearsay treated as substantive evidence is an irregularity of a magnitude great enough to be considered an Error in Law further, is objectionable to such a degree as to be self evident that the environment was being set for an unfair Hearing. 10. The learned trial Judge committed an error in law in not keeping with the general direction expressed in the New Brunswick Rules of Court Rule 1.03(2) in creating prejudice to the Plaintiff by raising issues not argued by either party and conversely the learned trial Judge avoided consideration of all pleadings, meritorious and or substantive material previously filed with Court of Queens Bench; as was filed by parties to the Motion for orders including the Plaintiffs: pursuant to section 52.1 (1) (b) of the Mechanics' Lien Act, the mechanics Lien Action be continued until October 21, 2010 or further Order of this Court. 11. The learned trial Judge committed an error in law in not keeping with the general direction expressed in the New Brunswick Rules of court Rule 1.03(2) in Hearing of the matter Honorable Madame Justice assured all parties to the action (please see provided transcript: Page 2 Line 16 excerpt: THE COURT: Let the record show that I have read all of the documents that have been filed..) initially the Honorable Court tacitly assures the Appellant (Plaintiff) Let the record show that I have read all of the documents that have been filed.. although contrary to what one might expect, would therefore occur during the hearing the Plaintiffs AMENDED NOTICE OF MOTION (FORM 37A) Filed with COURT

OF QUEENS BENCH, FREDERICTON TRIAL DIVISION, as received and Court File Date Stamped / MAY 31 2010, clearly listed as first and foremost - the order sought as was listed and is provided for consideration below is completely ignored, not addressed, instead it is bypassed by the Learned Judge in apparent preference of Order b) as requested; . a) That, pursuant to section 52.1 (1) (b) of the Mechanics Lien Act, the mechanics Lien Action be continued until October 21, 2010 or further Order of this Court. The learned Trial Judge instead appeared and did entirely neglect to address the aforementioned requested order and instead addressed only the next order as listed. b) That the Court grant a Extension of time pursuant to Rule 3.02 of the Rules of Court, May it Please this Honorable COURT of APPEAL; Appellant Andre Murray following the Motion Hearing on the 10th day of June, 2010, purchased a CD disk, a recording from the Court of Queens Bench Official Court Reporter. Appellant, after listening to the aforementioned CD disk Court Hearing recorded transcript, furthermore, after a dozen listening reviews of the above mentioned CD disk Recorded Transcript, it is realized that the Plaintiff is not permitted to speak or counter claim as Madame Justice dominates the entire Hearing, speaking on behalf of both the Plaintiff and Defendant to the Motion and is heard to be addressing only the second Order as listed and found, within the Motion, moreover, the learned Judge is entirely avoiding the primary, first listed Order found within the subject Motion and listed as: a) That, pursuant to section 52.1 (1) (b) of the Mechanics Lien Act, the mechanics Lien Action be continued until October 21, 2010 or further Order of this Court Note: Plaintiff in that matter is able near the end of the Hearing to utter words of objection, to the effect that the Plaintiff requires his requested Order as found listed, pursuant to section 52.1 (1) (b) of the Mechanics Lien Act addressing a Continuance of the Action. Unfortunately, Honorable Madame Justice refused to reply to these pointed assertions of the Plaintiff, instead Madame Justice insisted on addressing only the matter of Extension of time pursuant to Rule 3.02. 12. The learned trial Judge erred in law in not adhering with the Rule 39.01 (1) On a motion or application evidence may be given by affidavit unless directed otherwise by these rules or by order., The learned trial Judge made the pivotal decision in hearing of the said Motion 10th day of June, 2010, of whether to allow a Extension of time pursuant to Rule 3.02 of the Rules of

Court, learned trial Judge erred in law by arriving at the decision relying on inadmissible hearsay information. 13. The learned trial Judge erred in law, please see as within provided, further, as was listed in the Motion to be heard in Fredericton Trial Division June 10, 2010, are found requested Orders of the Honorable Court which, are accordingly sought first and primary, found listed as a), b), c), and d) as provided; incidentally Order item a), as listed was continually ignored by Madame Justice; a) That, pursuant to section 52.1 (1) (b) of the Mechanics' Lien Act, the mechanics Lien Action be continued until October 21, 2010 or further Order of this Court . 14. The learned trial Judge erred in law when hearing the Motion in Fredericton Trial Division June 10, 2010 neglected to Order an adequate adjournment so that admissible evidences of the requested information could be obtained by affidavit and served on the effected parties according to the Rules of Court, Rule 39.04 Service of Affidavits Except for the person giving Notice of Application or Notice of Motion, any person who intends to give affidavit evidence at the hearing shall serve a copy of such affidavit (a) on the person giving the notice, and (b) on each person served with the notice, at least 4 days prior to the date set for the hearing. 15. The learned Trial Judge erred in law, in irregularly applying the Courts Discretion to not Grant a Continuance according to section 52.1 (1) (b) of the Mechanics Lien Act. (Plaintiff in that matter) APPELLANT Andre Murray offers the Honorable COURT OF APPEAL consideration of according to Rules of Court, Rule 2.03 Attacking the Regularity of Proceedings: APPELLANT Andre Murray believes that the learned Trial Judge with prejudice, improperly exercised, the Courts Discretion in arriving at a final decision. 16. The learned trial Judge erred in law in not recognizing the principal of law expressed in the Maxim Audi Alteram Partem (Latin; literally 'hear the other side'). Appellant interprets the above listed maxim to mean: that in the Honorable Courts of New Brunswick no person shall be condemned punished or have any property or legal right compromised by the Court of Law without having first heard that person. The learned trial Judge in the matter to be considered before this Honorable Court of Appeal, would not allow the Appellant to be heard and nor was the Appellant permitted to address the Court, therefore potentially counter/reply/object, as, to why the Honorable Court should not make decisions based on the new information as obtained by hearsay. Opportunity to argue, as to why the foregoing and reasoning was flawed, was denied to the Appellant. The merit of facts found within documents previously filed as Affidavit and found within the file intended

to be reviewed and considered by the Honorable Motion Trail Judge was also denied during the very case before the Honorable Court. 17. The learned trial Judge erred in law in not recognizing the principal of law expressed in the Maxim Audi Alteram Partem, ('hear the other side'), in not considering documents filed by the Appellant to address the fact that the tentative purchaser, 501376 N.B. Ltd, a body corporate at the Power of Sale Mortgagee Deed Auction Sale, had caused a contract to be signed, BIDDING PAPERS AND TERMS OF SALE Agreement to Purchase dated: July 16, 2009, which, specifically stated that the purchasers would honor all Liens in full on the date of delivery of the Deed to such purchaser, furthermore since the Appellant was not permitted to speak to these matters.. 18. Furthermore, the learned trial Judge erred in law, again, not recognizing the principal of law expressed as Audi Alteram Partem, by not allowing the Plaintiff to draw the learned trial Judges attention to the fact that the source of the pivotal information which the Madame Justice had essentially custom designed (by instruction) then shortly thereafter accepted as substantive evidentiary material and finally was relied upon, to render a final decision, the hearsay not Sworn to under Oath, and was hearsay information allegedly sourced from two Solicitors both with potential and blatantly evident conflicts of interest: (Please see transcript: a Motion heard before Honorable Madame Justice Paulette Garnet on the 10th day of June, 2010 as prepared by Peggy Blackwell a certified Court reporter; please read transcript: page 8 beginning line 16 continue through to page 9 ending at including line 15). Allegedly Mr. Christie spoke with (ambiguously identified) council for the Royal Bank (transcript: page 9 line 4) of Canada vendor of the Investment Instrument Mortgagee Deed registered against subject property. (even further ambiguous: please see transcript: page 9 line10) who have advised me. This same interest was sold at Auction to Solicitor Hugh Cameron acting as Agent for Purchaser: 501376 N.B. Ltd, a body corporate. transcript: page 9 line 5 through to line 10) Allegedly Mr. Christie spoke with Solicitor Hugh J. Cameron acting as Agent for Purchaser, 501376 N.B. Ltd, a body corporate, who signed a BIDDING PAPERS AND TERMS OF SALE Agreement to Purchase dated: July 16, 2009, regarding the very same property, which said agreement stated as follows: the purchaser agrees to pay any outstanding .. Liens, , Appeal in full and below: as found at paragraph 10 and reproduced for consideration by this Honorable Court of

10. All real property taxes, water rates. liens, charges and/or local assessments, if any, shall be for the account of the purchaser and the purchaser agrees to pay any outstanding real property taxes, water rates, liens, charges and /or local assessments in full on the date of delivery of the Deed to such purchaser. 19. The learned trial Judge erred in law in not recognizing the principal of law expressed in the Maxim Audi Alteram Partem, consequentially, did not address the requested order of Appellant Andr Murray (Plaintiff in that matter) as found within the Motion as follows: The Plaintiff Andr Murray will apply to the Court of Queens Bench of New Brunswick, Fredericton Trial Division at Justice Building, 427 Queen Street, P.O. Box 6000 Fredericton, New Brunswick E3B 1B7, on the 10th day of June 2010 at 1:30 p.m. for an order that: a) That, pursuant to section 52.1 (1) (b) of the Mechanics' Lien Act, the mechanics Lien Action be continued until October 21, 2010 or further Order of this Court;

Furthermore, instead learned trial Judge erred in law focusing primarily on the Order which followed a) as found listed b): b) That the Court grant a Extension of time pursuant to Rule 3.02 of the Rules of Court. 20. The learned Trial Judge erred in law in not recognizing the principal of law expressed in the maxim nemo judex in causa sua debet esse which underlies the doctrine of "reasonable apprehension of bias". The Appellant contends that a question of reasonable apprehension of bias occurred when the learned Trial Judge announced requisite information, that will cause the Honorable Court to arrive at a predictable decision, then the Honorable Court charged Solicitor Thomas Christie with a task to collect that vary same information, during a 15 minute recess (became one hour) then upon the return of Solicitor Christie hearsay was accepted without validation according to Rules of Court requiring Affidavit evidence consequently reducing the reliability of same. 21. The learned Trial Judge erred in law in not recognizing the principal of law expressed in the maxim nemo judex in causa sua debet esse, vide supra , the learned trial Judge relied upon hearsay, which brings to question a reasonable apprehension of bias, was not sworn to under oath, possibly said in error and was definitely hearsay sourced from the same Hugh J. Cameron who is acting as Agent for Purchaser, 501376 N.B. Ltd, a body corporate, who signed a BIDDING PAPERS AND TERMS OF SALE Agreement to Purchase dated: July 16, 2009, regarding the very same property, which stated the purchaser agrees to pay any outstanding ..Liens,, at paragraph 10 reproduced in full below:

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All real property taxes, water rates. liens, charges and/or local assessments, if any, shall be for the account of the purchaser and the purchaser agrees to pay any outstanding real property taxes, water rates, liens, charges and /or local assessments in full on the date of delivery of the Deed to such purchaser.

22. The trial Judge erred in law in initially requesting hearsay evidence from Solicitor Thomas Christie for the Respondent than finally accepting hearsay as evidence, before the Honorable Court regarding the sale price without the use of Filed Affidavit Proof of Claim. The circumstances surrounding the entry into and on record of the hearsay evidence could not have the guarantee of trustworthiness necessary to allow their admission as evidence. NOTE: As this very same hearsay information was being accepted as evidence there was much confusion as to the actual numbers and details requiring a corrections and repetitions of the Entry on Record. 23. The trial Judge erred in law in admitting as evidence, hearsay statements by Solicitor Thomas Christie for the Defendant offered to the Honorable Court regarding the outstanding amount owing to RBC - the vendors of the Investment Instrument Mortgagee Deed following a Notice of Mortgage Sale affecting the Property Sale. The information source was the Solicitor for the tentative purchaser of the Mortgagee Deed whose answer could have been made in error, possibly incorrectly heard over the telephone and or may have alluded to the advantage of his client. The circumstances surrounding the making of the impugned entries On Record did not have the guarantee of trustworthiness necessary to allow their admission. 24. The learned trial Judge erred in law in arriving at a decision, which was not based on argument, not raised or offered by either party, not submitted by affidavit evidence by either the Plaintiff or Defendant, furthermore, and had departed from the matters in question regarding the actual matter of the Notice of Motion which is a required Continuance of the Action that the matters between the parties may find remedy. 25. The learned trial Judge erred in law in demonstrating prejudice, deciding that the Motion and orders requested and found listed, within same, would not be entirely considered, as, Madame Justice only permitted/allowed for review of certain predetermined criteria, which was being advanced by the learned Trial Judge, moreover, addressing only one of the requested orders and proceedings not based on or permitting argument offered by either party to the action. Nor was the above, aforementioned, here within requested orders Judged on the merits of all documents submitted and filed with Court of Queens Bench, which were intended to be used as argument by the Plaintiff, in that Motion and the said denial of

Plaintiffs request to plead to the matters, by the learned Trial Judge was consequentially, to the prejudice of the Plaintiff (in that matter); Appellant (in this matter). 26. The trial Judge erred in law in not Ordering an adjournment of sufficient time, that the answers to prescribed questions, as was requested by Madame Justice, would or could be properly obtained, subsequently, Filed with the Honorable Court by affidavit then properly served on the affected parties according to Rules of Court, Rule 39.04 Service of Affidavits Except for the person giving Notice of Application or Notice of Motion, any person who intends to give affidavit evidence at the hearing shall serve a copy of such affidavit (a) on the person giving the notice, and (b) on each person served with the notice, at least 4 days prior to the date set for the hearing. 27. The trial Judge erred in law in first of all not considering the Order requesting the Granting of a Continuance based on the merits of submitted Affidavit evidence revealing the circumstances of the case. The duty of the court is to ensure, as much as is possible, that justice is done, it is most unfair to deprive the Appellant of a opportunity to plead on the record to the facts of the case on its merits. Part IV ARGUMENT A concise statement of the argument, law, and authorities relied upon; 1) Rule 1.03 Interpretation 28. Black's Law Dictionary (8th ed. 2004), defines Justice as follows: JUSTICE - justice. 1. The fair and proper administration of laws. 29. The fair and proper administration of Justice in New Brunswick requires of the Court of Queens Bench Trial Division to apply the Rules of Court, for a determination of every proceeding on its merits. Dismissing, in this matter, a Motion for Orders granting a Continuance pursuant to section 52.1 (1) (b) of the Mechanics Lien Act, R.S.N.B. 1973, c. M-6, is an undeniable prejudice to any Plaintiff, however, this power to dismiss a Motion must be exercised, with great reserve, and deliberation, moreover, only after the Honorable Court having first heard in its entirety, pleadings, and arguments, relevant to the matter of the Motion for a Continuance as before the Court. Rule 1.02, of the New Brunswick Rules of Court is reproduced as follows: CITATION, APPLICATIONAND INTERPRETATION 1.02 Application

These rules apply to all proceedings in the Court of Queens Bench and the Court of Appeal unless some other procedure is provided under an Act.

30. A determination should be in keeping with the general direction contained in Rule 1.03(2) to secure the just, least expensive and most expeditious determination of every proceeding on its merits, Rule 1.03 (2), of the New Brunswick Rules of Court is reproduced as follows: CITATION, APPLICATION AND INTERPRETATION 1.03 Interpretation 1.03 (2) These rules shall be liberally construed to secure the just, least expensive and most expeditious determination of every proceeding on its merits. 31. The learned trial Judge, committed an error in law, in not keeping with the general direction expressed in the New Brunswick Rules of court, Rule 1.03(2) to secure the just, least expensive and most expeditious determination of every proceeding on its merits, by not taking into consideration the consequential prejudice suffered by the Plaintiff, further, in not rendering a Judgment based on the the substantive considerations to be taken into account in deciding a case, as opposed to the extraneous and or technical points which the learned Trial Judge instead pursued. Evidentiary affidavit material as was filed within the Court of Queens Bench, further, as was filed was not permitted to be argued before the Court. The learned trial Judge, prejudiced the hearing by raising her own predefined issues, not argued or raised by either party. The learned trial Judge did not acknowledge, taking into consideration, in contemplation of the Courts decision, all the pleadings and records filed as meritorious and or substantive, by both parties to the Motion, for Orders including that pursuant to section 52.1 (1) (b) of the Mechanics Lien Act, the mechanics Lien Action be Continued until October 21, 2010 or further Order of this Court. 32. It is my understanding that Judgment on the merits is a judgment made after consideration of the substantive, as distinguished from procedural issues in a case. Further to this point please find the following definition of Merits. Black's Law Dictionary (8th ed. 2004) defines merits as the following: MERITS merits. 1. The elements or grounds of a claim or defense; the substantive considerations to be taken into account in deciding a case, as opposed to extraneous or technical points, esp. of procedure <trial on the merits>. 2.EQUITY(3) <on questions of euthanasia, the Supreme Court has begun to concern itself with the merits as well as the law>. 33. The rules of Court 1.03 (2) states These rules shall be liberally construed, please find the following definition of Construed.

Black's Law Dictionary (8th ed. 2004) defines Construe as follows: CONSTRUE - construe (k<<schwa>>n-stroo), vb. To analyze and explain the meaning of (a sentence or passage) <the court construed the language of the statute>. please find the following definition of Just at Black's Law Dictionary (8th ed. 2004) defines Just as follows: JUST - just,adj. Legally right; lawful; equitable 34. When viewed in this language the Rule 1.03 (2) reads: These rules shall be liberally construed (analyzed and the meaning of explained ) to secure the just (Legally right; lawful; equitable), least expensive and most expeditious determination of every proceeding on its merits (The elements or grounds of a claim or defense; the substantive considerations to be taken into account in deciding a case, as opposed to extraneous or technical points, esp. of procedure). Furthermore, Merriam-webster.com defines merit at the following address (http://mw4.merriam-webster.com/dictionary/merits) as follows: Main Entry: 1merit 3 a plural : the substance of a legal case apart from matters of jurisdiction, procedure, or form b : individual significance or justification 35. Furthermore, on the merits is defined by legal-dictionary.com at the following internet web address: (http://legal-dictionary.thefreedictionary.com/on+the+merits) on the merits: on the merits adj. referring to a judgment, decision or ruling of a court based upon the facts presented in evidence and the law applied to that evidence. A Judge decides a case "on the merits" when he/she bases the decision on the fundamental issues and considers technical and procedural defenses as either inconsequential or overcome. Example: An attorney is two days late in filing a set of legal points and authorities in opposition to a motion to dismiss. Rather than dismiss the case based on this technical procedural deficiency, the Judge considers the case "on the merits" as if this mistake had not occurred. 36. The learned trial Judge erred in law in not keeping with the general direction as found expressed in the New Brunswick Rules of court Rule 1.03 (2) to secure the just, least expensive and most expeditious determination of every proceeding on its merits rather than reviewing and or examining evidentiary affidavit evidence material and or considering argument from the parties to the Motion the Honorable Justice Adjourned the Hearing of the Motion for 15 minutes (which became one hour) for the purposes as instructed and as directed by the Honorable Madame Justice that the Solicitor for the Defendant shall leave the Court room to search by telephone, for the answers to the

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Madame Justices leading subjective questions. Note; up and until this point in the Hearing, Honorable Madam Justice continued to dominate the Hearing as all submissions on record were those of Madam Justice. Arguments and or counter claims from Plaintiff or Defendant was not being allowed. The Appellant stood perplexed at such an impugned contention that a Defendant to an action could possibly be directed to telephone two primary opponents to the success of the Plaintiff (in that matter) furthermore, that upon return of the Honorable Court from the hearsay seeking adjournment the incredulous and or implausible possibility of the resultant telephone enquiries being unbiased and or independent meritorious answers worthy of evidence. The Plaintiff (Appellant in this matter) stood before the Honorable Court following the adjournment, listened as the Honorable Madam Justice subsequently, accepted the hearsay submissions of the returning Solicitor for the Defendant. The Appellant trusts that this irregularity complained of before the Court of Appeal as mentioned and found here within, is objectionable to such a degree, as to be self evident, that the environment was being set for an unfair and unjust Hearing. As aforementioned, the meritorious quality or lack thereof, regarding hearsay must not be understated and consequently cannot be seriously considered as a means of securing a just determination of any matter. 37. The learned trial Judge has erred in law by focusing on only two aspects expeditious and least expensive of the directive Rule 1.03(2). Regrettably the learned Trial Judge erred in law in not comprehending and implementing the totality of Rule 1.03(2). The Honorable Courts must not as it appears Madam Justice Garnett is prepared to sacrifice to secure the just,- most expeditious determination of every proceeding on its merits, in preference of (least expensive) to the prejudice of Justice and in this matter the Appellant. Below is excerpt. Reference: Transcript Page 13. Line 11, 12, 13, and 14; THE COURT: in effect, I am not giving you an extension on this matter. It is a waste of the Courts time. It is a waste of Money. It is a waste of everything. The Appellant believes there is a need to preserve the sanctity of the adversarial process where the onus to move the action along must not take priority over securing a just and meritorious determination. There is a need to protect against compliance with the rules taking precedence over resolving the dispute. Honorable Madam Justice Garnett negated the need to secure a fair, just and balanced determination, based on the MERITS.

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38. A Continuance of the Action was requested of the Honorable Court by NOTICE of MOTION and ought to have heard based on the merits or lack thereof and consequently a decision rendered, governed accordingly. 39. The Appellant a self-represented litigant has persevered, through great hardships, to adhere to the Rules of Court and according to the Mechanics Lien Act requirements, thereby, bringing forward this Mechanics Lien Action to secure and protect his equity investment in the Marshall Street Property. The Appellant has met all the required filing timelines and justly seeks a fair opportunity to present documented evidence to the Court for consideration, that the matter may be finally decided, based on merit. 40. The AMENDED NOTICE OF MOTION (FORM 37A) Filed with COURT OF QUEENS BENCH FREDERICTON TRIAL DIVISION, Court file Date Stamped: MAY 31 2010, requested orders to grant a Continuance of the Mechanics Lien Action. Honorable Madam Justice Paulette Garnet presiding on the MOTION 10th day of June, 2010, subsequently, transcribed by Blackwell Court Reporting, illustrates, the Honorable Madam Justice Paulette Garnets prejudice, (Please see page 11 of transcript line16 Therefore, it is a complete waste of time to continue this claim for lien. assertion suggests that the actual complete circumstance of the matter before the court, were of no consequence in the Courts decision, beginning at Reference: Transcript Page 11. Line 12: continues until Page 13. Line 24; 41. Furthermore The Court should have been aware of the unusual circumstances surrounding the subject Mechanics Lien Action (contractual documents necessary for Discovery according to Mechanics Lien Act. are being withheld). As found evidenced within the submitted transcript of the subject Motion, to grant a Continuance of the Mechanics Lien Action, heard on the 10th day of June, 2010 at Fredericton, New Brunswick, Reference: Transcript Page 2, line 16 continues until Page 2. Line 17; THE COURT: Let the record show that I have read all the documents that have been filed,. 42. Some of the circumstances, surrounding the unusual delay in moving forward- the Mechanics Lien Action, where expressed on the following excerpt as provided below is a letter to E. Thomas Christie, Solicitor for Betty Rose Danielski Dated: May 31, 2010, which is included within Appeal Book subsection (h) a copy of any affidavit evidence; as submitted to the Court of Queens Bench Trial Division, Judicial District of Fredericton as follows: Reference: Appeal book: Subsection (h)

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Dear E. Thomas Christie, Regarding Andre Murray v. Betty Rose Danielski Many documents required to resolve the subject Mechanics' Lien Action regarding Andre Murray v. Betty Rose Danielski are located in or on the premises known as civic address 29 Marshall Street, Fredericton, New Brunswick. Please be advised October 23, 2009, residential Tenant Andre Murray vacated the property pursuant to a Court Order issued from Court of Queens Bench, Moncton Trial Division of October 20, 2009. Furthermore, the Court issued Orders to Vacate resulted from hearing of the Notice of Motion requested by Solicitor George H. LeBlanc acting on behalf of Plaintiffs Royal bank of Canada and 501376 N.B. Ltd, a body corporate. Andr Murray has made his position abundantly clear to Solicitor George H. LeBlanc, that documents necessary to defend his position as the legitimate Residential Tenant, further, that multiple legal documents relative to establishing Andr Murrays legal standing before the Honorable Courts of Queens Bench, New Brunswick, are being withheld by Solicitor George H. LeBlancs denial of access, to 29 Marshall Street Fredericton New Brunswick, as has been requested in writing and verbally, both in person and by telephone conversation between Andr Murray and Solicitor George H. LeBlanc. Regrettably, to date, Andre Murray must report that George H. LeBlanc, acting Solicitor for the Royal Bank of Canada, further, which financial institution is currently holding an investment interest in the subject property 29 Marshall Street Fredericton New Brunswick by way of a Mortgagee Deed, appear disagreeable and non responsive to the many attempts made by vacated Residential Tenant Andre Murray and his attempts to regain access to subject documents currently located at the 29 Marshall Street, Fredericton, New Brunswick property. Furthermore, please consider that to date Residential Tenant Andre Murray has been frustrated by the numerous Notices of Motion and the subsequent relative Court Files of Motions for Orders of Adjournment of same Court Actions brought in the first place by Solicitor George H. Leblanc, acting for Royal Bank of Canada, the Mortgagee of subject property. Kindly consider that since the October 20th, 2009, Ex Parte Hearing of a Royal Bank of Canada Motion to the Honorable Courts requesting Orders to vacate Residential Tenant from 29 Marshall Street, Fredericton, furthermore, since Residential Tenant Andre Murray was the alleged victim an illegal and unlawful eviction from 29 Marshall Street, Fredericton Andre Murrays Motion to Rescind the Orders of the Court of Queens Bench, Moncton Trial Division, New Brunswick, Dated October 20th, 2009, has been responded to by George H. LeBlanc, acting Solicitor for the Royal Bank of Canada by Motions followed by George H. LeBlanc subsequently Filing with Court of Queens Bench Motions for Adjournments regarding the hearing of same. Because of the adverse conditions, subsequently created by the Royal Bank of Canadas non compliance to Plaintiff Andre Murrays legitimate requests for access to civic address 29 Marshall Street for retrieval of documents essential to this matter regarding his Claim for Lien, Registered with Service New Brunswick, against Property bearing civic address 29 Marshall Street, and 31 Marshall Street, Fredericton, New Brunswick and therefore notwithstanding the aforementioned circumstances found elaborated here within, consequently Plaintiff Andre Murray

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has no alternative than to request a Continuance of this matter, pursuant to section 52.1 (1) (b) of the Mechanics' Lien Act. I trust the following clearly outlines my position and should you require further confirmation, Plaintiff Andre Murray is at your convenience, and will reply same day to all correspondence arriving before noon by e-mail to andremurraynow@gmail.com next day if by Registered Mail to 31 Marshall Street, Fredericton, NB, E3A 4J8. 43. The learned Trial Judge erred in law in the misapprehension of the facts made no reference to the Lease or the unusual circumstances surrounding the matter before the court except for a passing mention, as is evidenced within the Official Court transcript of the subject Motion, and heard on the 10th day of June, 2010 at Fredericton,; Reference: Transcript Page 10. Line 23, 24 and 25: On October 20th this is 2009 the Plaintiff was ordered to vacate the property. please take note the here within above Honorable Madame Justice erred in law; demonstrating Bias and has misapprehended the following in that the plaintiff was not Ordered to vacate property in general, rather the subject Order to Vacate was specific to one civic address of a Residential duplex at 29 Marshall Street in the City of Fredericton, furthermore, the Honorable Madame Justice erroneously contends that on December 8, 2009 there was a hearing before the court of Appeal in which the plaintiff sought leave to appeal the order that was made in the Moncton Court on October 20th, 2009 Facts actually are that the Appellant in the above matter as quoted was the intended Appellant in that matter not as erroneously referred to as plaintiff aforementioned above by Honorable Madame Justice, furthermore misapprehension occurs by the learned Trial Judge as there never was a Leave to Appeal hearing in the month of December, 2009, instead the truth of the matter is the Leave to Appeal Hearing took place on the 9th of November and again on the 12th of November, 2009 and not at all in December 2009. The decision from that leave to appeal hearing of November 12, 2009 was that the Appellant was unjustly evicted from 31 Marshall Street, and costs where awarded to the Appellant. (may this please the Honorable Court of Appeal below is a convenient excerpt of transcript as found; Reference: Transcript Page 10, line 23 continues until Page 11. Line 9. THE COURT ..On October the 20th - -this is 2009 - - the plaintiff was ordered to vacate the property. On November 26th, 2009 the defendant filed a notice of Intent to Defend along with a demand for particulars. On December the 8th 2009, there was a hearing before the court of Appeal in which the plaintiff sought leave to appeal the order that was made in the Moncton Court on October 20th, 2009. The leave to appeal was not granted, however the Court of Appeal note that the Order related only to 29 Marshall Street. So the plaintiff moved back into the property at whatever the other number is. . 44. The learned Trial Judge erred in law in the misapprehension of the here within above facts as found Reference: Transcript Page 10, line 23 continues until Page 11. Line 9.

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therefore, demonstrating prejudice in refusing to recognize and or distinguish between different civic addresses instead Honorable Madame Justice preferred to refer to a single property and evidently resisted refereeing to a separate civic address as follows: So the plaintiff moved back into the property at whatever the other number is. . 45. The learned Trial Judge erred in law in the misapprehension of the actual purchase Date of subject property and is seen alternating back and forth between incorrect October 21, 2000 than later the Honorable Madame Justice verbalizes correct Date as October 24, 2000; Reference: Transcript Page 2. Line 16 continues until Page 2. Line 18. Date changed at Reference: Transcript Page 9. Line 19 and 20 46. The learned Trial Judge erred in law in the misapprehension of the actual name of the Mortgagee alternating back and forth between initially the Royal Bank later erroneously refers to the Bank of Montreal Reference: Transcript Page 2. Line 19 continues until Page 2. Line 21. Mortgagee name changes at Reference: Transcript Page 9. Line 20 to 22 47. It is Appellant Andr Murrays position that the Court abused its discretion in this matter. The want of the learned Trial Judge to quickly end the mater, as opposed to allowing the matter to see itself through to a natural conclusion. The arriving at decisions based on questionable hearsay evidence, which, again the Honorable Madame Justice took into account irrelevant matters in while ignoring the requested Order of a Continuance of the Action as related to the Plaintiffs Mechanics Lien. Denial by the Learned Trial Judge of the Plaintiff (in that matter) a chance to tell his side is an Abuse of the Courts discretion. Black's Law Dictionary (8th ed. 2004) defines Abuse of discretion as follows: abuse of discretion. 1. An adjudicator's failure to exercise sound, reasonable, and legal decision-making. 2. An appellate court's standard for reviewing a decision that is asserted to be grossly unsound, unreasonable, illegal, or unsupported by the evidence. See DISCRETION. [Cases: Appeal and Error 946; Criminal Law 1147. C.J.S. Appeal and Error 772.] 48. Abuse of discretion is defined at the following address: http://legal-dictionary.thefreedictionary.com/Abuse+of+Discretion abuse of discretion n. a polite way of saying a trial Judge has made such a bad mistake ("clearly against reason and evidence" or against established law) during a trial or on ruling on a motion and that a person did not get a fair trial. A court of appeals will use a finding of this abuse as a reason to reverse a previous court result. Examples of "abuse of discretion" or Judges' mistakes include not allowing an important witness to testify, making improper comments that might influence a jury,

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showing bias, or making rulings on evidence that deny a person a chance to tell his or her side of the matter. This does not mean a trial or the Judge has to be perfect, but it does mean that the Judge's actions were so far out of bounds that someone truly did not get a fair trial. 49. The learned trial Judge committed an error in law in not keeping with the general direction contained in the New Brunswick Rules of court Rule 1.03(2) to secure the just, least expensive and most expeditious determination of every proceeding on its merits in not taking into consideration the prejudice to the Plaintiff by raising an issue not argued by either party. 50. Reference: Daly v. Petro-Canada, 1995 CanLII 6205 (NB Q.B.) (per Justice H. H. McLellan) stated his view regarding the discretion of the Trial Judge and also his view that the Court of Appeal has reaffirmed that matters of civil procedure should be decided on their substance and merits. Please see: Discretion of Trial Judge page 6 9 51. The learned trial Judge erred in law in making a discretionary decision, which was not based on argument, raised by either party, submitted affidavit evidence or submitted argument and not based on just determination of the substantial matters in between the parties and as a result the Courts Order would result in injustice if allowed to stand. 52. The learned Trial Judge erred in law in not granting a Continuance based on the merits and circumstances of the matter. The Plaintiff had good reason to ask the Court for a Continuance, to date the Plaintiff had been evicted on a surprise enforcement of Eviction Orders resulting from a ex parte Order of the Court, acquired by Solicitors for the Royal Bank of Canada, from the Court of Queens Bench, Moncton Trial Division by lack of proper notice and or Process Service of Court Documents. Consequentially, documents necessary to move the subject Mechanics Lien Action forward to discovery are not accessible to Plaintiff in that matter and Appellant in this Appeal because of the fact that the eviction Order has consequentially, denied the Appellant (Plaintiff in that matter) access to all contractual documentary evidence necessary to progress with the Discovery and other preliminary process prior to arriving at a settlement of the Lien, further, said documents continue to be with held from the plaintiff after several requests made to retrieve same. The duty learned Trial Judge of Trial Division is to ensure, so far as possible, that justice is done, it was most unfair to deprive Plaintiff (in that matter) determination of the proceeding on its actual merits. 53. The learned Trial Judge erred in law in failing to take into proper consideration the facts

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and law relating to the particular matter before the Court and therefore abused the discretion of the Court. Basing a decision that substantially decides rights of the parties grounded on a hypothetical event that possibly may or may not happen, is not a grounded decision at all. The Court was aware that the Mortgage Auction had taken place July 16, 2009 and the same Mortgage Auction had not yet closed. For the Court to dismiss this previously as stated and established as unusual fact, means that the Learned Trial Judge exercised her discretion under a misapprehension as to the facts; decision making ability was skewed. 54. Furthermore Abuse of Discretion is defined by Lectlaw at the following website: (http://www.lectlaw.com/def/a004.htm) ABUSE OF DISCRETION When a court does not apply the correct law, or if it rests its decision on a clearly erroneous finding of a material fact. U.S. v. Rahm, 993 F.2d 1405, 1410 (9th Cir.'93). A court may also abuse its discretion when the record contains no evidence to support its decision. MGIC v. Moore, 952 F.2d 1120, 1122 (9th Cir.'91) When Judges make decisions on various questions, they must, of course, follow the standards set out by law. These standards, though, often allow Judges a lot of leeway (which is called discretion). Judges are given this discretion so they can make decisions that are fair in a particular case, instead of being locked into a formula that may not suit every situation. The exercise of judicial discretion is difficult to attack on appeal, because the decision, by law, was left to the Judge in the first place. Nevertheless, judicial discretion must be exercised fairly and impartially, and a showing to the contrary may result in the ruling being reversed as an abuse of discretion. 55. The learned Trial Judge erred in law by resting its decision on a clearly erroneous finding of a material fact, namely that the Mortgagee Deed offered at Auction and Registered against the subject property has closed and or concluded. The Sale has not closed and in essence is not a complete sale until that time. Until that time the Plaintiff (in that matter) Appellant (in this matter) has great potential of recovering his Equity in the Property. 56. The Plaintiff (in that matter) Appellant (in this) does rely upon a point that which must not be overlooked: as long as the Lien is in place the Tentative purchaser will have to honor his BIDDING PAPERS AND TERMS OF SALE Agreement to Purchase dated: July 16, 2009, requiring, purchaser must honor all Liens, the date of closure of the subject sale. Abuse of Discretion is defined by answers.com at the following website: http://www.answers.com/topic/abuse-of-discretion

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Abuse of Discretion A failure to take into proper consideration the facts and law relating to a particular matter; an arbitrary or unreasonable departure from precedents and settled judicial custom. Where a trial court must exercise discretion in deciding a question, it must do so in a way that is not clearly against logic and the evidence. An improvident exercise of discretion is an error of law and grounds for reversing a decision on appeal. It does not, however, necessarily amount to bad faith, intentional wrong, or misconduct by the trial Judge. 57. The learned Trial Judge erred in law by failing to take into proper consideration the facts and law relating to the case, as presented by submission to the Court by the Plaintiff. The Court did arbitrarily, unreasonably and mistakenly departs from precedents and settled judicial custom. 58. The learned Trial Judge exercised discretion in deciding a question before the Court, but did so, in a way that is clearly against logic and the evidence. An improvident exercise of discretion is an error of law and grounds for reversing a decision on appeal. 59. Continuances are customarily granted only if valid grounds exist that justify the postponement of the action. A continuance may and should be granted for the accidental loss or destruction of papers in an action provided they cannot be readily replaced and the applicant for the continuance was not responsible for their loss, as was the case before the Honorable Court. 60. Abuse of Discretion is furthermore defined by the Cornell Law University Website at the following website address: (http://topics.law.cornell.edu/wex/abuse_of_discretionAbuse of discretion) A standard of review used by appellate courts to review decisions of lower courts. A judgment will be termed an abuse of discretion if the adjudicator has failed to exercise sound, reasonable, and legal decision-making skills. 61. The learned trial Judge erred in law in application of judicial discretion, judicial discretion must be exercised fairly and impartially, and a showing to the contrary may result in the ruling being reversed as an abuse of discretion. 62. Furthermore Manifest Abuse of Discretion is defined by duhaime.org at the following address: (http://www.duhaime.org/LegalDictionary/M/ManifestAbuseofDiscretion.aspx) Manifest Abuse of Discretion

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An American standard of judicial review: discretion exercised improvidently or thoughtlessly and without due consideration. In Beverly Enterprises, Justice Hannah wrote: Certiorari is available in the exercise of this court's superintending control over a tribunal that is proceeding illegally where no other adequate mode of review has been provided. It applies where the proceedings are erroneous on the face of the record and where it is apparent on the face of the record that there has been a plain, manifest, clear, and gross abuse of discretion. "A manifest abuse of discretion is discretion exercised improvidently or thoughtlessly and without due consideration." In Malicoat, the Indiana Court of Appeal preferred: "[M]anifest abuse of discretion ... is when the trial court's decision is clearly against the logic and the facts of the case." But, then, in Bitterrooters, the Montana Supreme Court used these words: "A manifest abuse of discretion is one that is obvious, evident, or unmistakable." 63. A manifest abuse of discretion is one that is obvious, evident, or unmistakable which the Appellant believes is apparent in this here subject matter before the Court of Appeal. 64. The learned trial Judge erred in law, by demonstrating prejudice furthermore conducting the proceedings in hearing of the Motion for a Continuance of the Mechanics Lien Action should be arbitrarily decided based on predetermined criteria advanced by the Court itself and not based on argument offered by either parties or the material presented to the Court Judged, on its merits, consequently the Court did fail to exercise sound, reasonable, and legal decision-making skills. 2) Rule 39.01 Evidence on Motions EVIDENCE ON MOTIONS AND APPLICATIONS 39.01 By Affidavit (1) On a motion or application evidence may be given by affidavit unless directed otherwise by these rules or by order. 65. Admissible evidence is evidence which can be brought forward in a hearing to support or undermine a legal case. In order to be considered admissible, evidence must meet certain standards. The goal of the court process is truth-seeking and, to that end, the evidence of all those involved in judicial proceedings must be given in a way that is most favorable to eliciting the truth.

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66. The learned trial Judge erred in law in not adhering with the Rule 39.01 (1) On a motion or application evidence may be given by affidavit unless directed otherwise by these rules or by order., The learned trial Judge made the pivotal decision in hearing the said Motion Dated: 10th day of June, 2010 of whether to allow a Extension of time pursuant to Rule 3.02 of the Rules of Court, relying on inadmissible hearsay information, moreover, as listed in that Motion heard before the Honorable Court, orders sought first and primary, as was listed as such, which incidentally was continually ignored and or avoided by Madame Justice; a) That, pursuant to section 52.1 (1) (b) of the Mechanics Lien Act, the mechanics Lien Action be continued until October 21, 2010 or further Order of this Court. 67. The fundamental concern, with regard to the admissibility of hearsay evidence, is that an outof-court statement may be relied upon as proof of the truth, used as evidence, without any fair opportunity, through cross-examination, to test its veracity and, consequently, infringes the principles of fundamental justice. 68. The trial Judge erred in law in admitting as evidence Third Hand hearsay statements of Solicitor Hugh J. Cameron and a unnamed Solicitor for Cox & Palmer, allegedly spoken by telephone to Solicitor for the Respondent. The circumstances surrounding the making of the impugned statements did not have the guarantee of trustworthiness necessary to allow their admission; in addition, the trial Judge erred in law in admitting hearsay as evidence as it had no probative value to the matter of Continuance of the Mechanics Lien Action while being highly prejudicial. 69. Black's Law Dictionary (8th ed. 2004) ,defined the HEARSAY, HEARSAY EXCEPTION and HEARSAY RULE as the following: HEARSAY hearsay. 1. Traditionally, testimony that is given by a witness who relates not what he or she knows personally, but what others have said, and that is therefore dependent on the credibility of someone other than the witness. Such testimony is generally inadmissible under the rules of evidence. 2. In federal law, a statement (either a verbal assertion or nonverbal assertive conduct), other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.Fed. R. Evid. 801(c). Also termed hearsay evidence; secondhand evidence. Cf. original evidence under EVIDENCE. [Cases: Criminal Law 419;Evidence 314324. C.J.S. Criminal Law 856; Evidence 227228, 234, 259266, 268284,319, 505506.] double hearsay. A hearsay statement that contains further hearsay statements within it, none of which is admissible unless exceptions to the rule against hearsay can be applied to each level <the double hearsay was the investigation's report stating that Amy admitted to running the red light>.Fed. R. Evid. 805. Also termed multiple hearsay; hearsay within hearsay. [Cases: Criminal Law 419(13); Evidence 314324.] HEARSAY EXCEPTION

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hearsay exception. Any of several deviations from the hearsay rule, allowing the admission of otherwise inadmissible statements because the circumstances surrounding the statements provide a basis for considering the statements reliable. HEARSAY RULE hearsay rule. The rule that no assertion offered as testimony can be received unless it is or has been open to test by cross-examination or an opportunity for crossexamination, except as provided otherwise by the rules of evidence, by court rules, or by statute. The chief reasons for the rule are that out-of-court statements amounting to hearsay are not made under oath and are not subject to crossexamination. Fed. R. Evid. 802. Rule 803 provides 23 explicit exceptions to the hearsay rule, regardless of whether the out-of-court declarant is available to testify, and Rule 804 provides five more exceptions for situations in which the declarant is unavailable to testify. [Cases: Criminal Law 419; Evidence 314324. C.J.S. Criminal Law 856; Evidence 227228, 234, 259266, 268284, 319, 505506.] [T]he great hearsay rule ... is a fundamental 70. The first incident of acceptance before the Court of hearsay evidence occurred as can be found in the transcript of the subject Motion.. The Honorable Madam Justice Paulette Garnett states that she does not, (however and in spite of voluminous substantive Court filed material) have the information she needs to come to a decision as follows, Reference: Transcript Page 2. Line 16 continues until Page 2. Line 25; THE COURT: let the record show that I have read all of the documents that have been filed, and they reveal that on October the 21st, 2000 the defendant, Betty Rose Danielski, purchased the subject property. On October the 26th, 2000 she gave a mortgage to the Royal Bank. Now, Mr. Christie, what I am not able to tell from the record is how much the mortgage was for. Do you have that information? MR. CHRISTIE: I do not. Im sorry. 71. Reference: Transcript Page 4, line 12 continues until Page 4. Line 23; MR. RICHARDSON: Its the best the whole of the affidavit. I didnt realize that the exhibits were in substance in MR. CHRISTIE: The If I may, I note that the mortgage dated October 26th, 2000 of which was appended to the affidavit THE COURT: Yes, the first I knew it was, but it just wasnt given to me MR. CHRISTIE: My apologies for that. The principal amount, $86,700. THE COURT: Okay. All right. Back to the record. 72. The second incident of acceptance before the Court of hearsay evidence occurred as can be found in the transcript of the subject Motion. The Honorable Madam Justice Paulette Garnett states that she does not have the information she needs to come to a decision as follows,

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Reference: Transcript Page 5, line 6 continues until Page 6. Line 13; THE COURT: ..On July 16th, 2009 a mortgage sale was conducted by the Royal Bank. And again, I want to know the particulars of the mortgage sale. Do we know? Mr. Christie: I, I dont know. I am sorry THE COURT: Do you know? MR. RICHARSON: My Lady, the only thing that were aware of about the sale, as far as I know, is contained in the mortgage. I, I havent .Mr. Christies the only one thats had contact with Ms. Daneilski. I simply work from the files. THE COURT: It seems to me that it is abundantly obvious, at least to you, Mr. Christie, perhaps to .not to Mr. Murray who is not a lawyer. However the facts are this: The mortgagor The Mortgagee has a priority over a claim for lien. So, the mortgage salewhen the property was sold, if it was sold at a deficiency, which they almost always are, then the claim for lien is secondary to that. And without knowing that we dont know whether or not this claim for lien has any chance of recovering from the proceeds of the property. What Im trying to say is this whole thing might be moot and if I had that information Id know whether it is or not. Mr. Murray do you know how much the property sold for? MR. MURRAY: I , I dont have any documents with me to show that, Your Honor. I apologize. THE COURT: Do you know? MR. MURRAY: Um MR .CHRISTIE: If I was to suggest a 10 or 15 minute adjournment would that be of any help to the court? 73. Reference: Transcript Page 8, line 15 continues until Page 9. Line 4; (COURT RESUMED) THE COURT: Okay. Mr. Christie, did you have any luck? MR. CHRISTIE: Thank you, I did. And well Ive spoken to Mr. Hugh Cameron who has acted for and continues to act for the party who purchased the interest in the home at the mortgage sale, and he had at one time filed an affidavit in another proceeding involving the bank and the numbered company who purchased it. And in that affidavit he deposes, and he has confirmed for me this afternoon, that his client offered and was accepted the amount of $79,101, 79,101 of which a deposit of $8000 has been put toward the purchase price which is still being held, of course, because this lien is holding up the conclusion of that. 74. The Third incident of acceptance before the Court of hearsay evidence occurred as can be

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found in the transcript of the subject Motion. The Honorable Madam Justice Paulette Garnett states that she does not have the information she desires. Reference: Transcript Page 9, line 5 continues until Page 9. Line 15. THE COURT: Okay. And do we know what, if any deficiency there was? MR. CHRISTIE: Well, I can advise you Ive spoken to the counsel for the Royal Bank THE COURT: Okay. MR. CHRISTIE: who have advised me that on July the 8th, 2009 the amount owing at that time, which would be inclusive of the taxes and legal fees associated with the property at that time was $79,078.65 So the difference in those was roughly $23. And I THE COURT: Thats what I thought. 75. Reference: Toronto-Dominion Bank v. Cambridge Leasing Ltd., 2006 NBQB 92 (CanLII) (per William T. Grant) Paragraph 7 9. 76. The requested information could have been misunderstood, mixed up or in error. For the learned Trial Judge to utilize hearsay information to make the pivotal decision of whether to dismiss the Motion of June 10, 2010 or not is an error in law and unjust to the Plaintiff in that matter. The information and statements should be under oath, solemn affirmation or affidavit. 77. Reference: R. v. Duguay, 2005 NBQB 63 (CanLII) (per Justice Lucie A. LaVigne) Paragraph 15 18. 78. Reference: R. v. Duguay, 2005 NBQB 63 (CanLII) (per Justice Lucie A. LaVigne) Paragraph 8 11. 79. Admissible evidence is material brought before a Court to support or undermine a legal case. In order to be considered admissible evidence, certain standards must be met. The learned Trial Judge did not allow Plaintiff argument of admissibility of hearsay information, regardless that this information is irrelevant to the matters of a Continuance. Plaintiff is prejudiced. 80. Black's Law Dictionary (8th ed. 2004) ,provides the following definition of admissible evidence: admissible evidence.Evidence that is relevant and is of such a character (e.g., not unfairly prejudicial, based on hearsay, or privileged) that the court should receive it. Also termed

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competent evidence; proper evidence; legal evidence. [Cases: Criminal Law 661; Federal Civil Procedure 2011; Trial 43. C.J.S. Criminal Law 656, 751, 1202; Trial 162.] 81. Admissible evidence is defined by legal-dictionary.thefreedictionary.com at the following address: (http://legal-dictionary.thefreedictionary.com/Admissibility+of+Evidence) admissible evidence n. evidence which the trial Judge finds is useful in helping the trier of fact (a jury if there is a jury, otherwise the Judge), and which cannot be objected to on the basis that it is irrelevant, immaterial, or violates the rules against hearsay and other objections. Sometimes the evidence which a person tries to introduce has little relevant value (usually called probative value) in determining some fact, or prejudice from the jury's shock at gory details may outweigh that probative value. 82. Reference: Bari c. R., 2006 NBCA 119 (CanLII) (per Justice ALEXANDRE DESCHNES, J.A.) Paragraph 17 19 83. Appellant Andre Murray believes a fundamental concern of reliability lies at the heart of the hearsay rule. By excluding non affidavit submissions that which may produce unfair verdicts, the hearsay rule serves as a cornerstone of a fair justice system 84. The learned Trial Judge erred in law in accepting as evidence hearsay statements before the Court, moreover, the learned Trial Judge erred in law by the misapprehension of the purpose of the Motion and instead of dealing with the Orders as requested and listed found there within concerned herself with matters irrelevant for the purposes of addressing the Orders as requested. 85. The learned Trial Judge erred in law by allowing for Admissibility of hearsay evidence, as was brought before the Court after the adjournment (called for those purposes), hearsay may not be relied upon as proof of the truth or used as evidence, since cross-examination is not possible, to test its veracity and, consequently, infringes upon the principles of fundamental justice. 86. Hearsay rule exceptions remain in Common law, interpreted and updated to conform to the twin requirements of necessity and reliability. Further evidence not falling within an exception may be admitted if the prerequisites of necessity and reliability are established. This retains the certainty and predictability associated with the common law exceptions to the hearsay rule and avoids the need to hold a voir dire when evidence falls within an established exception. 87. Applying above rules to this case, the question is whether an established exception to the

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hearsay rule applies to the evidence at issue requested by the Court. The answer in this case is no. Reference: R. v. Mapara, 2005 SCC 23, [2005] 1 S.C.R. 358, Paragraph 15 to 17 (Per Chief Justice McLachlin C.J.) 88. The trial Judge erred in law in not Ordering an adjournment sufficient in time so that the information requested by the Court could be obtained by affidavit and served on the affected parties. 3) Rule 39.04 Service of Affidavits EVIDENCE ON MOTIONS AND APPLICATIONS 39.04 Service of Affidavits Except for the person giving Notice of Application or Notice of Motion, any person who intends to give affidavit evidence at the hearing shall serve a copy of such affidavit (a) on the person giving the notice, and (b) on each person served with the notice, at least 4 days prior to the date set for the hearing. 89. The learned trial Judge erred in law in not Ordering an extended adjournment adequate so that admissible evidences of the requested information could be obtained by affidavit and served on the effected parties according to the Rules of Court, Rule 39.04 Service of Affidavits Except for the person giving Notice of Application or Notice of Motion, any person who intends to give affidavit evidence at the hearing shall serve a copy of such affidavit (a) on the person giving the notice, and (b) on each person served with the notice, at least 4 days prior to the date set for the hearing 90. This adherence to the Rules of Court would have provided the Plaintiff an opportunity to examine the documents and prepare a counter claim for the courts consideration. 4) Rule 2.03 Attacking the Regularity of Proceedings NON-COMPLIANCE WITH THE RULES 2.03 Attacking the Regularity of Proceedings A motion to attack a proceeding for irregularity shall be made within a reasonable time, and shall not be allowed if the party applying has taken a further step in the proceeding after having knowledge of the irregularity. 91. The learned Trial Judge erred in law, in irregular application of the Courts Discretion to not Grant a Continuance according to section 52.1 (1) (b) of the Mechanics Lien Act. The Appellant brings the Courts attention according to Rules of Court, Rule 2.03 Attacking the

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Regularity of Proceedings and considers that the learned Trial Judge improperly exercised, with prejudice, the Courts Discretion in arriving at a final decision. 92. The learned Trial Judge erred in law ("nobody shall be a judge in his own cause") by improperly directing the parties to provide information, which had not been included in the record filled with the Court, not substance of argument as by either party. Justice should not only be done but it should be seen to have been done The Judge hearing a case should refrain from coming to a conclusion without hearing argument from one party or the other 93. The Court did not adhere to the principals of Natural Justice, so fundamental to a healthy, just and productive Court system, the very principals which are necessary for just and fair decision making. 5) Maxim -Audi Alteram Partem -Latin; literally 'hear the other side'. Maxim - Audi Alteram Partem -Latin; literally 'hear the other side'. 94. The principles of natural justice have evolved under common law as a check on the arbitrary exercise of power, and ensure that these powers are exercised in a just and fair manner. The common law, has responded to this need to control the exercise of powers through applying the principles of natural justice to the exercise of such powers. If there is any substantial departure from these principles of natural justice, the decision can and should be challenged and set aside through the judicial process. 95. The learned trial Judge erred in law in not recognizing the principal of law expressed in the Maxim Audi Alteram Partem (Latin; literally 'hear the other side'). The Appellant comprehends the following maxim to mean, in law, that no person shall be condemned, punished or have any property or legal right compromised by a court of law without having first heard that person. The learned trial Judge, would not allow the Appellant to be heard and nor to address the Court and explain why the Court should not make the decision based on the new information proposed, and address why, that reasoning was flawed based on the merits of facts found within filed documents. 96. The learned trial Judge erred in law in not recognizing the principal of law expressed in the Maxim Audi Alteram Partem, vide supra, in not considering documents filed by the Appellant to address the fact that the Tentative purchaser, 501376 N.B. Ltd, a body corporate, at the Mortgage Sale, had caused a contract to be signed, BIDDING PAPERS AND TERMS OF SALE Agreement to Purchase, Dated, July 16, 2009 which stated specifically that the

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purchasers would honor all Liens in full on the date of delivery of the Deed to such purchaser, again the Plaintiff was not permitted to speak to these matters. 97. The learned trial Judge erred in law in not recognizing the principal of law expressed in the Maxim Audi Alteram Partem, vide supra, by not allowing the Plaintiff to draw the attention of the learned trial Judge to the fact that the source of the subjective pivotal hearsay information, which the Madame Justice ultimately relied upon, was not Sworn to under Oath, and was hearsay information sourced both from stated and ambiguous sources, moreover, but not less prejudicial is the fact that the sources of hearsay have blatantly evident conflicts of interest: Allegedly Mr. Christie spoke with (ambiguously identified) council for the Royal Bank of Canada vendor of the Investment Instrument Mortgagee Deed registered against subject property. (Reference: Transcript; Page 9. Line 4). who have advised me (further ambiguity: Reference: Transcript; Page 9 Line10). This same interest was sold at Auction to Solicitor Hugh Cameron acting as Agent for Purchaser: 501376 N.B. Ltd, a body corporate. Reference: Transcript page 9. line 5, through to line 10; Solicitor Hugh J.Cameron acting as Agent for Purchaser, 501376 N.B. Ltd, a body corporate, who signed a BIDDING PAPERS AND TERMS OF SALE Agreement to Purchase, Dated, July 16, 2009, , which above said agreement, excerpted as follows: the purchaser agrees to pay any outstanding ..Liens, (which Appellant does rely upon) Reference: please see BIDDING PAPERS paragraph 10. reproduced below for convenience: 10. All real property taxes, water rates. liens, charges and/or local assessments, if any, shall be for the account of the purchaser and the purchaser agrees to pay any outstanding real property taxes, water rates, liens, charges and /or local assessments in full on the date of delivery of the Deed to such purchaser.

98. The learned trial Judge erred in law in not recognizing the principal of law expressed in the Maxim Audi Alteram Partem, vide supra, evidently, did not address the requested order as follows: That, pursuant to section 52.1 (1) (b) of the Mechanics Lien Act, the Mechanics Lien Action be continued until October 21, 2010 or further Order of this Court, moreover, the learned trial Judge erred in law ignoring the primary Order, focusing instead on the following secondary order as was listed, as: b) That the Court grant a Extension of time pursuant to Rule 3.02 of the Rules of Court.

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99. The following is found at legal-dictionary.thefreedictionary.com at the following internet web address provided below: http://legal-dictionary.thefreedictionary.com/audi+alteram+partem audi alteram partem [Latin, hear the other side.] It embodies the concept in Criminal Law that no person should be condemned unheard; it is akin to due process. The notion that an individual, whose life, liberty, or property are in legal jeopardy, has the right to confront the evidence against him or her in a fair hearing is one of the fundamental principles of Constitutional Law in the United States and England. 100. The learned trial Judge erred in law by not applying the principle that no person should be Judged without a fair hearing in which each party is given the opportunity to respond to the evidence. 101. Furthermore the following principle of natural justice is found at wikipedia.org address provided below: (http://en.wikipedia.org/wiki/Nemo_iudex_in_causa_sua) The other principle of natural justice is "Hear the other party" (Audi alteram partem) otherwise put "Reasonable opportunity must be given to each party, to present his side of the case". The legal effect of a breach of natural justice is normally to stop the proceedings and render any judgment invalid; it should be quashed or appealed, but may be remitted for a valid rehearing. 102. The following is found at duhaime.org address provided below: http://www.duhaime.org/LegalDictionary/A/Audialterampartem.aspx Audi Alteram Partem Latin; literally 'hear the other side'. The maxim means, in law, that no person shall be condemned, punished or have any property or legal right compromised by a court of law without having heard that person. Justice Bayley wrote, in Chapel v Child: "I know of no case in which you are to have a judicial proceeding, by which a man is to be deprived of any part of his property, without having an opportunity of being heard." A principle of natural justice which prohibits a judicial decision which impacts upon individual rights without giving all parties in the dispute a right to be heard.

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Habeas corpus was an early expression of the audi alteram partem principle. In more recent years, it has been extended to include the right to receive notice of a hearing and to be given an opportunity to be represented or heard at that hearing. The expression received this endorsement from the US Supreme Court (Caritativo): "Audi alteram partem - hear the other side! - a demand made insistently through the centuries, is now a command, spoken with the voice of the due process clause of the 14th Amendment, against state governments, and every branch of them - executive, legislative, and judicial - whenever any individual, however lowly and unfortunate, asserts a legal claim. "It is beside the point that the claim may turn out not to be meritorious. It is beside the point that delay in the enforcement of the law may be entailed ... "The right to be heard somehow by someone before a claim is denied, particularly if life hangs in the balance, is far greater in importance to society, in the light of the said history of its denial, than inconvenience in the execution of the law. If this is true when mere property interests are at stake ... how much more so when the difference is between life and death?" 103. The following is found at wikipedia.org at the following address: http://en.wikipedia.org/wiki/Audi_alteram_partem Audi alteram partem Audi alteram partem (or audiatur et altera pars) is a Latin phrase that means, literally, hear the other side.[1] It is most often used to refer to the principle that no person should be Judged without a fair hearing in which each party is given the opportunity to respond to the evidence against him.[2] "Audi alteram partem" is considered a principle of fundamental justice or equity in most legal systems. The principle includes the rights of a party or his lawyers to confront the witnesses against him, to have a fair opportunity to challenge the evidence presented by the other party, to summon one's own witnesses and to present evidence, and to have counsel, if necessary at public expense, in order to make one's case properly. As a general principle of rationality in reaching conclusions in disputed matters, "Hear both sides" was treated as part of common wisdom by the ancient Greek dramatists.[3] 104. The transcript of the Motion and subject of this appeal, for a Continuance of the Mechanics Lien Action, heard on the 10th day of June, 2010 at Fredericton, New Brunswick, transcribed by Blackwell Court Reporting, illustrates, the Honorable Madam Justice Paulette Garnetts assertion contrary to principles of fundamental justice, furthermore, the learned Trial Judge verbalized that the actual complete circumstance of the matter before the court, is of no consequence in the determination of the Honorable Courts decision. Reference Transcript beginning at page 11. Line 12 continues until Page 13. Line 24:

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105. The learned trial Judge erred in law in not recognizing the principal of law expressed in the Maxim Audi Alteram Partem, vide supra by unilaterally arriving at the decision to dismiss the entire Motion, based on irrelevant hearsay information not related to any of the Orders requested; all reference to Orders requested where restricted to a secondary Order found listed within the Motion, rather than considering the primary Order as requested. Instead the learned trial Judge chose to explore a hypothesis that has not yet concluded, while chimerically alluding that it has. Note: the Mortgage sale has not yet closed and at any time the tentative purchasers may withdraw from the contractual Agreement for Purchase resulting in a new Mortgage auction sale or private sale by the Vendor R.B.C., again, which, may provide the Plaintiff (in that matter) with compensatory funds in accordance with the Plaintiffs Mechanics Lien Claim. 6) Maxim - Nemo Judex In Parte Sua- Latin: no person can Judge a case in which he or she is party or in which he/she has an interest. 106. The principle that no one should be a Judge in his own action, there underlies the doctrine of "reasonable apprehension of bias". As a general principle, this is not permitted in law because the taint of bias would destroy the integrity of proceedings conducted in such a manner. The question is whether Honorable Madame Justice Paulette Garnetts instructional comments could cause a reasonable observer to apprehend bias. 107. The learned Trial Judge erred in law in not recognizing the principal of law expressed in the maxim nemo judex in causa sua debet esse which underlies the doctrine of "reasonable apprehension of bias". The appellant contends that a reasonable apprehension of bias arose by the fact that the learned Trial Judge, announced the information required for the Court to come to a predictable decision favorable to the Defendant in that matter, then charged the Solicitor for the Defendant to adjourn - collect that vary same information, without questioning the validity or reliability of the same inadmissible hearsay information. 108. The learned Trial Judge erred in law in not recognizing the principal of law expressed in the maxim nemo judex in causa sua debet esse, vide supra, moreover, the learned trial Judge in this matter at the outset of the hearing of the Motion did declare (please see provided transcript: Page 2 Line 16 excerpt: THE COURT: Let the record show that I have read all of the documents that have been filed..) as the learned Trial Judge tacitly assured all concerned that the Honorable Court was well advised on the matters before the Court than reasonable apprehension of bias, should have been obvious in the matter of obtaining information that was not sworn to under oath, possibly said in error and was hearsay information sourced from the same Solicitor acting as Agent for Purchaser, 501376 N.B. Ltd, a body corporate, who signed a BIDDING PAPERS AND TERMS OF SALE Agreement to

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Purchase dated: July 16, 2009, regarding the very same property, which stated the purchaser agrees to pay any outstanding ..Liens,, at paragraph 10 reproduced in full below: 10. All real property taxes, water rates, liens, charges and/or local assessments, if any, shall be for the account of the purchaser and the purchaser agrees to pay any outstanding real property taxes, water rates, liens, charges and /or local assessments in full on the date of delivery of the Deed to such purchaser. 109. The learned trial Judge erred in law in making a discretionary decision, which was not based on argument, not raised or offered by either party, not submitted by affidavit evidence by either the Plaintiff or Defendant, furthermore, the Honorable Court departed from the matters in dispute between the parties to the prejudice of the Appellant. 110. The learned trial Judge erred in law in demonstrating prejudice, deciding that the Motion and Orders sought found there within, requested would not be entirely considered, alternatively, Madame Justice only permitted for review of certain predetermined criteria, which was being advanced by the Honorable Court, further, addressing only one of the requested orders as found within the Motion and not permitting argument offered by either party to the action, nor was the aforementioned requested orders Judged on the merits of all documents submitted and filed within Court of Queens Bench, further, which were intended to be used as argument by the Plaintiff in that Motion and this denial was consequentially, to the prejudice of the Appellant. 111. The trial Judge erred in law, displaying a reasonable apprehension of bias, in not Ordering an adjournment of sufficient time, that the answers to prescribed questions, as was requested by the Honorable Madame Justice, would or could be properly obtained and properly Filed with the Honorable Court by affidavit then properly served on the affected parties according to the Rules of Court, Rule 39.04 Service of Affidavits 112. The trial Judge erred in law, displaying a reasonable apprehension of bias in not ordering a Continuance based on the merits of submitted affidavit evidence and circumstances illustrated there within. The duty of the court is to ensure, that justice is done, it is most unfair to deprive the parties to the Action, of opportunity to plead on the record. 113. The trial Judge erred in law There appears to be evidence of a possible conflict between the interests of Justice, as the learned Trial Judge was predetermining the outcome of the hearing and actually did direct the proceedings to these ends. Therefore not conducting a unbiased hearing, which raises a reasonable apprehension of bias. 114. The trial Judge erred in law Reasonable apprehension of bias, and would undermine

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public confidence in the impartiality of the Court. Impartiality meaning the principle of justice holding that decisions must be based on objective criteria, rather than on the basis of bias, prejudice, or preferring the benefit to one person over another for improper reasons. 115. Let us examine the following maxims associated with principles of natural justice: Maxim Nemo Judex In Parte Sua Latin: no person can Judge a case in which he or she is party or in which he/she has an interest. And The maxim nemo judex in causa sua debet esse underlies the doctrine of "reasonable apprehension of bias. 116. First let us examine Nemo Judex In Parte Sua. The following is found at duhaime.org at the following address: http://www.duhaime.org/LegalDictionary/N/Nemojudexinpartesua.aspx Nemo Judex In Parte Sua Latin: no person can Judge a case in which he or she is party or in which he/she has an interest. Latin, and a fundamental principle of natural justice which states that no person can Judge a case in which he or she is party or in which he/she has an interest. Also known as: nemo judex in sua causa; or nemo debet esse judex in propria causa.

In Canada, the Supreme Court had occasion to reflect on the maxim in Brosseau v Alberta Securities Commission [1989] 1 SCR 301, Justice l'Heureux-Dub: "The maxim nemo judex in causa sua debet esse underlies the doctrine of reasonable apprehension of bias. . "As a general principle, this is not permitted in law because the taint of bias would destroy the integrity of proceedings conducted in such a manner." 117. The following is found at wikipedia.org at the following address: http://en.wikipedia.org/wiki/Nemo_iudex_in_causa_sua Nemo iudex in causa sua (or nemo iudex in sua causa) is a Latin phrase that means, literally, no-one should be a Judge in their own cause. It is a principle of natural justice that no person can Judge a case in which they have an interest. The rule is very strictly applied to any appearance of a possible bias, even if there is actually none: "Justice must not only be done, but must be seen to be done".

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The other principle of natural justice is "Hear the other party" (Audi alteram partem) otherwise put "Reasonable opportunity must be given to each party, to present his side of the case". The legal effect of a breach of natural justice is normally to stop the proceedings and render any judgment invalid; it should be quashed or appealed, but may be remitted for a valid re-hearing. 118. A example of reasonable apprehension of bias can be found in the transcript of the subject Motion, requesting the granting of a Continuance of the Mechanics Lien Action, and heard on the 10th day of June, 2010 at Fredericton, New Brunswick. The Honorable Madam Justice Paulette Garnett continues to the effect that she does not have the information she needed to come to a decision, but expected the coming information to be a certain way and then confirms her prejudice as follows; Reference: Transcript Page 9, line 5 continues until Page 9. Line 15. THE COURT: Okay. And do we know what, if any deficiency there was? MR. CHRISTIE: Well, I can advise you Ive spoken to the counsel for the Royal Bank THE COURT: Okay. MR. CHRISTIE: who have advised me that on July the 8th, 2009 the amount owing at that time, which would be inclusive of the taxes and legal fees associated with the property at that time was $79,078.65 So the difference in those was roughly $23. And I THE COURT: Thats what I thought. 119. An example of reasonable apprehension of bias can be found in the transcript of the Motion, (subject of this Appeal) further, to grant a Continuance of the Mechanics Lien Action, heard on the 10th day of June, 2010 at Fredericton, New Brunswick. The Honorable Madam Justice Paulette Garnett in no uncertain words proclaims, that, she does not have certain information, furthermore, describes in detail, information she desires ( Please see transcript page 6 line 2, 3 & 4 excerpt: THE COURT: what Im trying to say is this whole thing might be moot and if I had that information, Id know whether it is or not.) to come to a decision, but expected the coming information to be a certain way and then confirms her prejudice found referenced as follows. Reference: Transcript beginning at page 6, line 14 continues until page 8, line 14

120. This example of reasonable apprehension of bias can be found in the transcript of the subject Motion, requesting the granting of a Continuance of the Mechanics Lien Action, and heard on the 10th day of June, 2010 at Fredericton, New Brunswick. The Honorable Madam

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Justice Paulette Garnett is initially instructing; then requesting; then accepting indirect third hand hearsay information from Solicitor Hugh Cameron that would be to the undeniable financial benefit of Hugh Camerons Client no longer having to honor the lien, as is the subject of this Appeal; please see following, Reference: Transcript Page 8. Line 15 continues until page 9. Line 4: (COURT RESUMED) THE COURT: Okay. Mr. Christie, did you have any luck? MR. CHRISTIE: Thank you, I did. And well Ive spoken to Mr. Hugh Cameron who has acted for and continues to act for the party who purchased the interest in the home at the mortgage sale, and he had at one time filed an affidavit in another proceeding involving the bank and the numbered company who purchased it. And in that affidavit he deposes, and he has confirmed for me this afternoon, that his client offered and was accepted the amount of $79,101, 79,101 of which a deposit of $8000 has been put toward the purchase price which is still being held, of course, because this lien is holding up the conclusion of that. 121. The Appellant in this subject matter believes that equal opportunity for all concerned parties, did become unbalanced, therefore unjustly favoring one side or the other, especially as the parties themselves where forced to be passive observers and or reluctant participants, therefore, submissive to the restraint or command of authority, of the learned Trial Judge, the Appellant believes observation of the proceedings that day, by any informed and reasonable observer of the trial Judge, would naturally give rise to a reasonable apprehension of bias. Reference: R. v. R.D.S., 1997 CanLII 324 (S.C.C.), [1997] 3 S.C.R. 484 Per Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, Iacobucci and Major JJ for an elaboration of this principle at paras. 109 -120, inclusive. 122. Judges should be held to the highest standards of impartiality, which should be a cardinal rule of judicial conduct, since they will have to determine the most fundamentally important rights of the parties appearing before them.

Regarding Order Sought 123. In Noble Securities Holding Limited v. Tremblay, 2007 NBCA 91 (CanLII), J. ERNEST DRAPEAU, CHIEF JUSTICE OF NEW BRUNSWICK, explained why the Court may render any decision and make any order which ought to have been made, and may make such further or other order as the case may require, at paragraph 12 as follows: [12] Under Rule 62.21(1) this Court may render any decision and make any order which ought to have been made, and may make such further or other order as the case may require. In our view, it is appropriate to extend the deadlines set by Rule 37.06(1) and to rescind the decision of January 23, 2006 pursuant to that Rule.

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124. This full section 62.21 of the Rules of Court of New Brunswick is quoted below: 62.21 Powers of Court of Appeal To Draw Inferences and Make Decisions (1) The Court of Appeal may draw inferences of fact, render any decision and make any order which ought to have been made, and may make such further or other order as the case may require. 125. In consideration of the following Appellant Andre Murray respectfully requests, that this Honorable Court of Appeal under Rule 62.21(1) grant a Continuance of the Mechanics Lien Action pursuant to section 52.1 (1) (b) of the Mechanics Lien Act. This would save Court resources and move the matter along expeditiously. Part V Order Sought Part V A concise statement of the order sought from the Court of Appeal, including any special disposition with regard to costs; A. that this Court of Appeal Order a Continuance of the Mechanics Lien Action under Rule 62.21(1) pursuant to section 52.1 (1) (b) of the Mechanics Lien Act. B. that under Rule 62.21(7) this Court set aside the Order, decision or judgment appealed from and Order a new trial or hearing of Motion for Continuance of the Mechanics Lien Action pursuant to section 52.1 (1) (b) of the Mechanics Lien Act.. C. an Order that the Defendant pay costs of the Motion, (Court File Number: F/C/104/09) heard June 10th, 2010 before the Court of Queens Bench of New Brunswick Trial Division Judicial District of Fredericton, D. That the RESPONDENT pay costs of the within Notice of Appeal. ALL OF WHICH IS RESPECTIVELY submitted at Fredericton, New Brunswick this 20th day of September, 2010.

_________________ Appellant Andr Murray

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SCHEDULE A LISTED AUTHORITIES Schedule A - A list of authorities in the order referred to in the Submission Written Submission 1. 2. 3. 4. 5. Black's Law Dictionary (8th ed. 2004), definition - Justice: Black's Law Dictionary (8th ed. 2004) definition merits Black's Law Dictionary (8th ed. 2004) definition - Construe Black's Law Dictionary (8th ed. 2004) definition - Just Merriam-webster.com definition - merit at the following address (http://mw4.merriam-webster.com/dictionary/merits) 6. legal-dictionary.com definition - on the merits - at the following address: http://legal-dictionary.thefreedictionary.com/on+the+merits on the merits 7. 8. Black's Law Dictionary (8th ed. 2004) definition - Abuse of discretion legal-dictionary.com definition - Abuse of discretion at the following address: http://legal-dictionary.thefreedictionary.com/Abuse+of+Discretion 9. Daly v. Petro-Canada, 1995 CanLII 6205 (NB Q.B.) - (per Justice H. H. McLellan) Please see: Discretion of Trial Judge page 6 9 at the following address: http://www.canlii.org/en/nb/nbqb/doc/1995/1995canlii6205/1995canlii6205.html 10. lectlaw definition - Abuse of Discretion - at the following website: (http://www.lectlaw.com/def/a004.htm) 11. answers.com definition Abuse of Discretion- at the following address: http://www.answers.com/topic/abuse-of-discretion 12. Cornell Law University - definition Abuse of Discretion at the following website address: http://topics.law.cornell.edu/wex/abuse_of_discretionAbuse of discretion

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13. duhaime.org - definition Manifest Abuse of Discretion at the following address: (http://www.duhaime.org/LegalDictionary/M/ManifestAbuseofDiscretion.aspx) 14. Black's Law Dictionary (8th ed. 2004) , - definition - HEARSAY 15. Black's Law Dictionary (8th ed. 2004) , - definition - HEARSAY EXCEPTION 16. Black's Law Dictionary (8th ed. 2004) , - definition - HEARSAY RULE 17. Toronto-Dominion Bank v. Cambridge Leasing Ltd., 2006 NBQB 92 (CanLII) (per William T. Grant) Paragraph 7 9. - at the following address: http://www.canlii.org/en/nb/nbqb/doc/2006/2006nbqb92/2006nbqb92.html 18. R. v. Duguay, 2005 NBQB 63 (CanLII) (per Justice Lucie A. LaVigne) Paragraph 15 18. at the following address: http://www.canlii.org/en/nb/nbqb/doc/2005/2005nbqb63/2005nbqb63.html 19. R. v. Duguay, 2005 NBQB 63 (CanLII) (per Justice Lucie A. LaVigne) Paragraph 8 11. at the following address: http://www.canlii.org/en/nb/nbqb/doc/2005/2005nbqb63/2005nbqb63.html 20. Black's Law Dictionary (8th ed. 2004) - definition - admissible evidence: 21. legal-dictionary.thefreedictionary.com - definition - Admissible evidence at the following address: http://legal-dictionary.thefreedictionary.com/Admissibility+of+Evidence 22. In Bari c. R., 2006 NBCA 119 (CanLII) (per Justice ALEXANDRE DESCHNES, J.A.) Paragraph 17 19 at the following address: http://www.canlii.org/en/nb/nbca/doc/2006/2006nbca119/2006nbca119.html 23. In R. v. Mapara, 2005 SCC 23, [2005] 1 S.C.R. 358 Paragraph 15 to 17 (Per Chief Justice McLachlin C.J.) at the following address: http://www.canlii.org/en/ca/scc/doc/2005/2005scc23/2005scc23.html 24. Maxim -Audi Alteram Partem -Latin; literally 'hear the other side'

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25. legal-dictionary.thefreedictionary.com - definition - audi alteram partem at the following address: http://legal-dictionary.thefreedictionary.com/audi+alteram+partem 26. wikipedia.org - definition - principle of natural justice at the following address: http://en.wikipedia.org/wiki/Nemo_iudex_in_causa_sua 27. duhaime.org - definition - Audi Alteram Partem at the following address: http://www.duhaime.org/LegalDictionary/A/Audialterampartem.aspx 28. wikipedia.org - definition - Audi alteram partem -at the following address: http://en.wikipedia.org/wiki/Audi_alteram_partem 29. Maxim - Nemo Judex In Parte Sua- Latin: no person can judge a case in which he or she is party or in which he/she has an interest. 30. The maxim nemo judex in causa sua debet esse underlies the doctrine of "reasonable apprehension of bias. 31. duhaime.org definition - Nemo Judex In Parte Sua. at the following address: http://www.duhaime.org/LegalDictionary/N/Nemojudexinpartesua.aspx 32. wikipedia.org - definition - Nemo iudex in causa sua (or nemo iudex in sua causa) at the following address: http://en.wikipedia.org/wiki/Nemo_iudex_in_causa_sua 33. Reference: R. v. R.D.S., 1997 CanLII 324 (S.C.C.), [1997] 3 S.C.R. 484 Per Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, Iacobucci and Major JJ at paras. 109 -120, inclusive. found at the following address: http://www.canlii.org/en/ca/scc/doc/1997/1997canlii324/1997canlii324.html 34. Noble Securities Holding Limited v. Tremblay, 2007 NBCA 91 (CanLII), (Per J. Ernest Drapeau, Chief Justice of New Brunswick, at paragraph 12 as follows: found at the following address: http://www.canlii.org/en/nb/nbca/doc/2007/2007nbca91/2007nbca91.html

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Oral submission 35. West's Encyclopedia of American Law, edition 2., found at the following address: http://legal-dictionary.thefreedictionary.com/continuance 36. R. v. R.D.S., 1997 CanLII 324 (S.C.C.), [1997] 3 S.C.R. 484 Per Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, Iacobucci and Major JJ the header of the Courts decision found at the following address: http://www.canlii.org/en/ca/scc/doc/1997/1997canlii324/1997canlii324.html 37. Encyclopedia.com definition - abuse of discretion at the following address: (http://www.encyclopedia.com/doc/1G2-3437700045.html) 38. mylawyer.com definition - hearsay evidence at the following web address: (http://www.mylawyer.com/legalinfo.asp?level=3&id=157) 39. itatonline.org - Justice Smt. Sujata V. Manohar, Supreme Court of India (Retd.) defined Principles of Natural Justice at the following address: http://www.itatonline.org/articles_new/index.php/principles-of-natural-justice/

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SCHEDULE B TEXT OF RELEVANT PROVISIONS OF STATUTES OR REGULATIONS Schedule B The text of all relevant provisions of Statutes or Regulations (or copies of the complete Statute or Regulation may be filed and served with the Submission). Maxims Maxim Audi Alteram Partem -Latin; literally 'hear the other side'. Maxim Audiatur et altera pars is a Latin phrase that means, literally, hear the other side Maxim Nemo Judex In Parte Sua - Latin: no person can judge a case in which he or she is party or in which he/she has an interest. Nemo iudex in causa sua (or nemo iudex in sua causa) is a Latin phrase that means, literally, no-one should be a judge in their own cause. It is a principle of natural justice that no person can judge a case in which they have an interest. The rule is very strictly applied to any appearance of a possible bias, even if there is actually none: "Justice must not only be done, but must be seen to be done". May also be called: * nemo iudex idoneus in propria causa est * nemo iudex in parte sua * nemo debet esse iudex in propria causa * in propria causa nemo iudex Maxim The maxim nemo judex in causa sua debet esse underlies the doctrine of "reasonable apprehension of bias. Relevant New Brunswick Rules of Court state as follows: Source: http://www.gnb.ca 1.03 Interpretation 1.03 (2) These rules shall be liberally construed to secure the just, least expensive and most expeditious determination of every proceeding on its merits. 2.03 Attacking the Regularity of Proceedings A motion to attack a proceeding for irregularity shall be made within a reasonable time, and shall not be allowed if the party applying has taken a further step in the proceeding after having knowledge of the irregularity. MOTIONS AND APPLICATIONS

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RULE 39 EVIDENCE ON MOTIONS AND APPLICATIONS 39.01 By Affidavit (1) On a motion or application evidence may be given by affidavit unless directed otherwise by these rules or by order. 39.04 Service of Affidavits Except for the person giving Notice of Application or Notice of Motion, any person who intends to give affidavit evidence at the hearing shall serve a copy of such affidavit (a) on the person giving the notice, and (b) on each person served with the notice, at least 4 days prior to the date set for the hearing. Mechanics' Lien Act, R.S.N.B. 1973, c. M-6 47 Where a claimant fails to establish a valid lien, he may nevertheless recover a personal judgment against any party to the action for such sum as may appear to be due to him, and that he might recover in an action against such party. Mechanics' Lien Act, R.S.N.B. 1973, c. M-6 52.1(1) An action to enforce a lien shall be deemed to be discontinued one year after the action is commenced unless (a) the action has been set down for trial, or (b) an application has been made to a judge of The Court of Queens Bench of New Brunswick for an order continuing the action and a copy of the notice of application has been served on the defendant to the action 62.21 Powers of Court of Appeal To Draw Inferences and Make Decisions (1) The Court of Appeal may draw inferences of fact, render any decision and make any order which ought to have been made, and may make such further or other order as the case may require. Further Evidence (2) The Court of Appeal or a judge thereof may receive evidence (a) on interlocutory applications, (b) as to matters which have occurred after the date of the order or decision appealed from, and (c) on special grounds, upon any question of fact. (3) The Court of Appeal or a judge thereof may direct that evidence to be received under paragraph (2) be taken (a) by oral examination in the Court of Appeal, (b) by affidavit, or (c) before an examiner or commissioner under Rule 33.

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Amendments (4) The Court of Appeal may allow any amendment.\ Where Exercisable (5) The powers of the Court of Appeal may be exercised (a) notwithstanding that the notice of appeal or crossappeal requests that part only of the order or decision be reversed or varied, or (b) in favour of a party who has not appealed from the order or decision. Interlocutory Ruling No Bar (6) An interlocutory order or decision from which there has been no appeal shall not operate to prevent the Court of Appeal from rendering any decision or making any order. New Trial or Hearing (7) Subject to paragraph (8), the Court of Appeal may set aside an order, decision or judgment appealed from and may order a new trial or hearing. (8) A new trial may be restricted to any issue, without interfering with the finding or decision upon any other issue. (9) The Court of Appeal shall not grant a new trial on the ground (a) of misdirection, (b) of improper admission or rejection of evidence, or (c) that the verdict of the jury was not taken upon a question which the judge at the trial was not asked to leave to them, unless substantial wrong or miscarriage of justice has resulted; and, if it appears to the Court of Appeal that such wrong or miscarriage of justice affects part only of the matter in controversy or some but not all of the parties, it may direct a new trial as to the part or parties affected. Referral Back (10) The Court of Appeal may refer back to the court appealed from any question of fact for its decision where, in the opinion of the Court of Appeal (a) the court appealed from is in a better position than the Court of Appeal to determine the question, or (b) the court appealed from excluded, or did not consider, evidence which is relevant and admissible. (11) Where, under paragraph (10), the Court of Appeal has referred back a question of fact, the court appealed from shall receive and consider (a) all evidence which the Court of Appeal has held to be admissible and relevant to such question of fact, and (b) all other evidence which the court appealed from considers admissible and relevant to such question of fact.

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62.24 Failure to Comply with Rule (1) Where a party to an appeal or his solicitor is at fault in failing to comply with this rule, the Court of Appeal on motion of any other party to the appeal or on the application of the Registrar, may (a) if the party failing to comply is the appellant, (i) dismiss the appeal with costs, including the costs of the motion, or (ii) direct the appellant to perfect the appeal within a specified time, (b) set the appeal down for hearing, or (c) make such other order as may be just including an order for payment of costs forthwith.

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