Section 2 of the Builders Lien Act provides that a party can lien for the price of work and material:
Subject to this Act, a contractor, subcontractor or worker who [performs or provides work or material] has a lien for the price of the work and material, to the extent that the price remains unpaid…
(Builders Lien Act, s. 2(1), emphasis added).
Section 4, which deals with the holdback, provides as follows:
4 (1) The person primarily liable on each contract, and the person primarily liable on each subcontract, under which a lien may arise under this Act must retain a holdback equal to 10% of the greater of
(a) the value of the work or material as they are actually provided under the contract or subcontract, and
(b) the amount of any payment made on account of the contract or subcontract price.
(3) For the purposes of subsection (1), value must be calculated on the basis of the contract or subcontract price or, if there is no specific price, on the basis of the actual value of the work or material.
(Builders Lien Act, s. 4, emphasis added).
Under s. 34(1) the maximum amount that can be recovered by all lien holders who claim under the same contractor or subcontractor is defined with reference to the holdback. Therefore, arguably, even if there was no agreed upon price, the lien holder has a lien for the “actual value of the work or material”.
Courts have also used the term quantum meruit when referring to the value added to the land:
I am also satisfied that Surerus Pipeline did work and furnished materials, thus entitling it to a builders lien on the two lots on which that work was done, or materials supplied. It is entitled to a builders lien, on the basis of quantum meruit, in the amount of $698,508.94.
(Surerus v. Rudiger, 2000 BCSC 1746 at para. 129).
GST can be included:
Homes may well be entitled to G.S.T. on those parts of the Lien which are maintainable.
(Tylon Steepe Homes Ltd. v. Pont, 2009 BCSC 253 at para. 27).