The defendants sought leave to amend their statement of defence and add a counterclaim for $800,000 for damages due to delay and deficiencies in a construction project.
The plaintiff opposed, arguing the counterclaim was statute-barred.
The court denied leave to add the counterclaim, finding it was outside the two-year limitation period under the Limitations Act, 2002, and no evidence refuted the statutory presumption of discoverability.
However, the court permitted amendments to the defence to assert the claims as an equitable set-off, noting that limitation periods do not apply to set-off claims as they are regarded as equitable defences under the Courts of Justice Act.
Costs were reserved to the trial judge.
