Master Prowse

7.3: Summary Judgment (Application and decision)
13.18: Types of affidavit

Case Summary

The Plaintiffs applied for Summary Judgment of its claim against the Defendant for unpaid invoices. The Defendants alleged set-off and filed a Counterclaim. The Defendants argued that the accounting records exhibited to the Plaintiffs’ Affidavit were hearsay and accordingly, were inadmissible for the purposes of a Summary Judgment Application per Rule 13.18. Master Prowse found that the accounting records met the business records exception to the hearsay rule, and were therefore admissible.

The Defendants also argued that the accounting records were not clear as to which of the Plaintiffs the debt was owed. Master Prowse found that this was not a legitimate defence as all of the companies to which the debt could be owed were parties to the Action, and the debt could be owed to no other entities.

Lastly, the Defendants asserted that they were entitled to set-off due to breaches of their contractual rights, and that it would be unfair to grant Summary Judgment in the Plaintiffs’ Action without accounting for the damages claim set out in the Counterclaim. The Defendants’ Affidavit however, appended no contract or any corroborating evidence to support the claim that there was a contractual obligation which was breached. Master Prowse noted that a self-serving Affidavit was insufficient to create a triable issue on the claim for set-off. Master Prowse further held that the Judgment would not be stayed pending the outcome of the Counterclaim as 4 years had elapsed from the date the Counterclaim was filed and the Defendant (Plaintiff by Counterclaim) had not sworn an Affidavit of Records nor completed Questioning.

The Application for Summary Judgment was granted.

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