5.12: Penalty for not serving affidavit of records
5.5: When affidavit of records must be served

Case Summary

The Defendants applied for an Order extending the deadline to file the Defendants’ Affidavits of Records. The Defendants were an individual and a corporate Defendant. The individual Defendant had also made an Application for an Order that the Action against him be struck. The Court recognized that the purpose of Part 5 of the Rules is to, amongst other things, encourage early disclosure. Rules 5.5(1) and (3) achieve this by fixing the time in which the Defendants must file their Affidavits.

Master Laycock held that there was sufficient cause for the individual Defendant to extend the time to file his Affidavit under Rule 5.12. The Court found that the individual Defendant’s upcoming Application to have the Action struck did not appear to be frivolous and in order to satisfy the efficiencies of time and expense the time for filing the individual Defendant’s Affidavit of Records should be extended to 30 days after the hearing of his Application to strike the Action against him. The Court did not award an extension to the corporate Defendant because the corporate Defendant had not brought an Application to have the Action against it struck. The Court found that the corporate Defendant had not demonstrated sufficient cause to extend the time for filing its Affidavit of Records under Rule 5.12.

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