MASTER Robertson

1.4: Procedural orders
4.31: Application to deal with delay
6.21: Preserving evidence for future use
7.1: Application to resolve particular questions or issues

Case Summary

This was an Application pursuant to Rule 4.31(1) to dismiss the Action on the grounds of delay. The Plaintiff had two distinct claims, one in debt and the other alleging the fraudulent conveyance of lands. One of the Defendants was an elderly man who died before any Questioning was done, though the elderly man’s counsel had been asking to move the case along because of the Defendant’s age and condition. Master Robertson observed that the nature of the fraudulent conveyance Claim was one where credibility was central to its resolution.

The Statement of Defence of the deceased Defendant largely paralleled the Statement of Defence of the Applicant, who was the son of the deceased. Master Robertson noted that Rule 6.21 authorizes the Court to order Questioning to preserve evidence where “there is the likelihood that the person might die before being required to give evidence”. The evidence of the deceased Defendant was important, perhaps critical. The Applicant lost the ability to have his father give evidence because of the Plaintiff’s delay and failure to respond to correspondence. Finally, the Plaintiff cancelled Questioning at least twice because its representative was not available, though it was not necessary to have the Plaintiff’s litigation representative present.

Master Robertson held that, in the circumstances of the case, it was necessary to dismiss the fraudulent preference claim. The Applicant was self-represented and, because he was not a lawyer, was not permitted to represent his father’s estate. Invoking Rules 1.4 and 7.1(3), Master Robertson also dismissed the Claim as against the estate, rather than forcing the estate to bring an Application to achieve an Order where the result would be a foregone conclusion.

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