The appellant, a property owner, appealed a summary judgment order requiring it to pay the respondent contractor $1,199,122.50 for the unpaid balance of a construction contract.
The motions judge had found that a prior settlement agreement constituted an unequivocal admission of liability, precluding the appellant from raising a defence of equitable set-off for construction deficiencies.
The Divisional Court allowed the appeal, holding that the settlement agreement expressly permitted the appellant to file a statement of defence without prejudice in the event of default.
As the elements of equitable set-off were present, there was a genuine issue for trial, and the summary judgment was set aside.
