This Appeal arose from an order from Master Laycock, granted in April 2010, dismissing the Plaintiff’s Action pursuant to Rule 244.1, as nothing had been done to materially advance the Action in the previous five years. The Appeal was heard on November 1, 2010 and the first issue dealt with by the Court was whether the new Rules of Court applied to the Appeal.

The Court concluded that as a result of Rule 15.2(1) “[t]here can be no doubt that the new rules apply to the hearing of this appeal”. The Court held that although former Rule 244.1 required nothing to have occurred that “significantly advanced” the Action, the change in terminology in the new drop dead rule, Rule 15.4(1), which requires nothing to have occurred which “materially advances” the Action, does not materially change the effect of the Rule. The Master stated:

… I find there is no significant or material difference between the two rules which would affect the determination of this appeal. There can be no different result if a thing or step is found to have been “significantly advanced” than if that thing or step is found to be “materially advanced”.

In addition to concluding that there is no significant difference between the old drop dead Rule and the new drop dead Rule, insofar as a determination of whether a step “significantly advances” or “materially advances” an Action, the Court also found that in this regard “the jurisprudence relating to the former ‘drop dead’ rule continues to be applicable to the new rule”.