master schulz

3.44: When third party claim may be filed
3.45: Form of third party claim
13.5: Variation of time periods

Case Summary

The Defendants brought an Application for an Order allowing them to serve a Third Party Claim against a proposed Third Party. Master Schulz noted that, pursuant to Rule 3.45, a Third Party Claim must be filed within six months after the date on which the Defendant filed the Statement of Defence.

Master Schulz stated that the time limits in Rule 3.45 are not limitation periods and therefore can be extended by Court Order pursuant to Rule 13.52. The Court reviewed the applicable authorities and determined that the test for the extension of time to file a Third Party Claim is a three part test: 1) was the delay inordinate; 2) was the delay adequately excused in the circumstances; and 3) did the delay prejudice the proposed Third Party Defendant. Master Schulz noted that, on this type of Application, the Court looks to both the Pleadings and the evidence adduced on the Application. This is not an Application to strike where only the Pleadings are considered and evidence is not allowed.

After reviewing the Pleadings and evidence in this case, the Court found that the short delays were not inordinate and had been adequately excused in the circumstances. Any prejudice that might have been suffered by the Third Party could be met through monetary compensation. Master Schulz allowed the Application.

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