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Costs of successful appeal fixed at $5,000, payable following the new trial.
Following a successful appeal where a new trial was ordered, the court determined the quantum of costs.
The court noted that while the appellants were successful, they could have achieved the same result with more judicious effort.
Costs were fixed at $5,000 inclusive of taxes and disbursements, payable following the new trial or settlement.
Appeal allowed and new trial ordered due to trial judge's palpable and overriding errors in assessing evidence.
The appellants appealed a Small Claims Court decision dismissing their action regarding a defective well in a real estate transaction.
The Divisional Court allowed the appeal and ordered a new trial, finding that the trial judge made two palpable and overriding errors.
First, the trial judge misinterpreted testimony regarding when modifications were made to the Seller Property Information Statement.
Second, the trial judge failed to consider and evaluate the evidence of several witnesses, including an expert hydrogeologist, who testified that the well was defective prior to the sale.
