Neighbouring property owners were engaged in protracted litigation concerning drainage and elevation changes caused by fill placed on the defendants’ property.
Earlier court orders required the construction of a retaining wall according to an agreed engineering design, with costs to be borne by the defendants.
After construction was completed, the plaintiffs sought payment of outstanding balances to the contractor and engineer from funds held in court and an order requiring the defendants to pay the remaining amount.
The defendants argued the wall was built according to a materially different plan than the one approved by court order and consent.
The court held that the work had proceeded without prior approval despite deviations from the approved design and costs exceeding the estimates, and required further affidavit evidence from the supervising engineer addressing the cost impact of those deviations before determining the remaining issues.
