6.6: Response and reply to application
6.8: Questioning witness before hearing

Case Summary

The Applicants applied for a Stay of a Hearing, and a Stay of the deadlines to provide written briefs, pending an Appeal of two Interlocutory Decisions. The Applicants obtained ex parte Attachment Orders against several of the Defendants. The parties entered into a Consent Security Order. A Hearing was scheduled to determine whether the Attachment Order of the Plaintiff should have been granted.

In advance of the Hearing, the Applicants served a Notice to Attend for Questioning under Rule 6.8 on a Defendant. The Respondent successfully applied to set aside the Notice due to the fact the information that the Applicants sought was available prior to the initial ex parte Application. Allowing the Applicants to supplement the evidence at the Hearing to determine whether the Attachment Order should have been granted was contrary to established common law principles. Further, under Rule 6.6, the Applicants were unable to file an additional Affidavit because the Respondents did not file one in response to the hearing.

The Applicants further intended to rely on two additional Affidavits that post dated the ex parte Attachment Order. A number of the Defendants applied to exclude these Affidavits. The Chambers Judge concluded that the Plaintiffs did not have the right to file the Affidavits, because, under Rule 6.6, the Defendants had not filed any in response. The Applicants Appealed these decisions.

Ultimately, Khullar JA concluded that the Applicants did not meet the common law test for a Stay of Proceedings and dismissed the Appeal.

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