The Plaintiff sought Summary Judgment with respect to a debt owed for a construction project. The Defendant disputed the authority of the President of the company at the time, Mr. Roy, to enter into the arrangement with the Plaintiff, and commenced third party proceedings against Mr. Roy.

The Plaintiff relied on former Rule 266 (now Rule 6.8) to examine Mr. Roy. There was a dispute as to the nature of the Examination evidence. Rule 6.8 states that the transcript of the Examination must be filed. Master Smart determined that the Examination transcript is evidence for the purposes of a Summary Judgment Application and “it matters not whose evidence it is, if the transcripts establish a conflict in the evidence then the Summary Judgment must be dismissed”.