6.37: Notice to admit
7.3: Summary Judgment (Application and decision)
13.18: Types of affidavit

Case Summary

In an Action concerning the failed purchase transaction for a parcel of land, the Plaintiff (“1218388”) sued for damages arising from the failure to close the sale, and the Defendant (“RCG”) counterclaimed for the return of its deposit. RCG applied for Summary Judgment on its Counterclaim, asserting that conditions precedent to the sale were not met, thus causing the purchase and sale agreement to terminate and entitling it to a refund of its deposit.

RCG did not file an Affidavit in support of its Application, rather, chose to rely on a Notice to Admit Facts served under Rule 6.37. Master Prowse noted without deciding, that a Notice to Admit Facts constituted “other evidence” required by Rule 7.3(2) to support a Summary Judgment Application. Master Prowse noted that the issue with this approach was that the Notice to Admit Facts only produced admissions that various pieces of correspondence were sent and received, but it did not seek nor receive admissions regarding the truth of the assertions made in the correspondence. Master Prowse held that, just as hearsay could not be relied upon in an Affidavit in support of an Application for Summary Judgment under Rule 13.18, hearsay could not be relied upon using “other evidence” under Rule 7.3(2). Master Prowse therefore held that the mere fact that correspondence was sent or received was insufficient to support RCG’s Application for Summary Judgment, without proving the truth of the assertions contained in that correspondence. Accordingly, the Application for Summary Judgment was dismissed.

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