On November 7, 2019, the Defendants filed an Application pursuant to Rule 4.33 for dismissal for long delay (the “Delay Application”). Later that same day, the Plaintiff was granted an Order directing the Defendants to provide a complete and proper set of answers to Undertakings and a further and better Affidavit of Records within 60 days (the “Undertakings Order”). On August 20, 2020, the Defendants applied, unsuccessfully, to have the Undertakings Order set aside (the “Application to Set Aside”). The Defendants appealed the outcome of the Application to Set Aside.

The Court first determined whether the Master was properly able to hear the Application to Set aside. The Defendants had argued that the Undertakings Order had been granted ex parte, and accordingly, sought to have the Undertakings Order set aside pursuant to Rule 9.15(1)(a). The Court determined that, because the Master had found that the Defendants did not have notice of the Plaintiff’s intention to obtain the Undertakings Order, relief under Rule 9.15 was available to the Defendants. Further, the Court found that the Defendant’s Application to Set Aside was properly brought, pursuant to Rule 9.16, before the same Master and the Master was not functus officio.

The Court then dealt with whether the Undertakings Order was granted ex parte. The Court determined that, because service was not properly affected, pursuant to the requirements of Rule 6.3(3), the Undertakings Order was granted ex parte, and should, therefore, be set aside under Rule 9.15(4).

Lastly, the Court addressed the issue of timing for when a Rule 4.33 Application freezes an Action. The Court reviewed the case law and concluded that a Delay Application freezes an Action when the Application is filed. A Plaintiff cannot take any further steps to advance an Action until the Delay Application is heard.