1.2: Purpose and intention of these rules
3.74: Adding, removing or substituting parties after close of pleadings
6.3: Applications generally
6.6: Response and reply to application
9.12: Correcting mistakes or errors
9.13: Re-opening case
9.14: Further or other order after judgment or order entered

Case Summary

Following a hearing with respect to liability, during which the Defendant was held liable for breach of contract regarding the delivery of six units of oilfield equipment, Master Mason directed that the parties return at a later date for a determination with respect to the quantum of damages.

The Plaintiff submitted that it was entitled to damages equal to the contract price. The Defendant argued that the Plaintiff was not entitled to the entire amount on the basis that the Plaintiff was misnamed “Inc.” rather than “Ltd” and was thus nonexistent and incapable of suffering damages; all the units ordered were paid for; the Plaintiff’s employees had admitted its loss was only 40% of the contract value; the Plaintiff had not proven its losses; and the Plaintiff had not mitigated its damages.

With regard to the Pleadings referring to the Plaintiff as “Inc.” rather than “Ltd”, the Defendant argued that proceedings brought by a non-existent party must be null. Master Mason explained that this was a case of misnomer, not a situation where a corporation had lost its status, therefore, the proceedings were not null. The Defendant argued further that amendments to remedy the naming error could no longer be made because a Judgment on liability had already been entered. It argued that Rules 9.12, 9.13 and 9.14 did not allow changes after Judgment was entered. Master Mason held that Rules 9.12 to 9.14 did not apply since the matter related to amending the Pleadings, not varying the Judgment with respect to liability.

Master Mason noted that the applicable Rules were 6.3, which allows Actions to be made pre- or post-Judgment, and Rule 3.74(2)(b) and (3), which allows the Court to add, remove, substitute, or correct the name of a party to an Action if the Court is satisfied that an Order should be made and if it would not result in prejudice to the other party. Further, the Defendant’s position on the misnomer issue was not in line with Rule 1.2, as it did not address a true legal issue or attempt to facilitate the quickest means of resolving the claim.

The Defendant, in order to support its position on the quantum of damages, sought to rely on a new Affidavit included at the end of its Responding Brief which was filed one week before the hearing. Master Mason held that Rule 6.6(1) applied, and stated that “new evidence should not be submitted along with a Responding Brief in a Special Application”. As a general principle, submitting new evidence in this way is not fair or efficient, and there is no reason that it should be necessary as the Parties generally have ample time to submit evidence in advance.

Master Mason concluded that the Plaintiff suffered a loss and it did not fail to mitigate its damages. Damages were assessed at $486,165.12.

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