The Defendants applied for Summary Dismissal on the basis that the Plaintiffs’ claims were based on an unenforceable Restrictive Covenant in an agreement between the parties. The Plaintiffs cross-applied seeking a declaration that the Restrictive Covenant was valid and enforceable.

The Plaintiffs argued that the Application for Summary Judgment should be dismissed because the Defendants’ Affidavit did not contain a statement swearing positively that there was no merit to the Claim. Master Schulz noted that, because a Summary Judgment Application may dispose of all or part of a Claim, Rule 13.18(3) applies. It requires that the Affiant swear the Affidavit based on his or her personal knowledge. Master Schulz stated that “the magic words are not necessary, but evidence on personal knowledge is necessary”. The Affiant’s role is to provide the Court with the evidence required to form an opinion on the issues in question. The presence or absence of a declaration that a claim or defence has no merit will not have any bearing on an Application for Summary Judgment.

Master Schulz held that the Restrictive Covenant was valid and enforceable and dismissed the Defendants’ Application for Summary Judgment.