N.G. Wilson

This motion concerned the interpretation of a clause in Agreements of Purchase and Sale regarding the calculation of "Net Developable Area" (NDA) for land development.

The core dispute was whether storm water management (SWM) ponds located on "Protected Countryside" (Greenbelt lands) should be included in the NDA, thereby affecting the purchase price adjustment.

The court applied principles of contractual interpretation, emphasizing a holistic reading of the agreement and grounding interpretation in the text.

It found the clause unambiguous, concluding that the exception for SWM ponds applied only to "open space lands" (Group A) and not to "Protected Countryside" (Group B).

Consequently, SWM ponds on Protected Countryside do not form part of the NDA.

The moving defendants sought leave to amend their statement of defence on the eve of trial, three and a half years after the action was commenced, to plead that the plaintiff's claims arose from the use and operation of an automobile and were subject to the Insurance Act.

The plaintiffs opposed the motion, arguing that the amendment would cause non-compensable prejudice as the case had been prosecuted on the basis that it was not a motor vehicle accident case.

The court dismissed the motion, finding that the presumption of prejudice from the delay had not been rebutted and that the plaintiffs would suffer actual prejudice if the amendment were permitted.