6.11: Evidence at application hearings
7.3: Summary Judgment (Application and decision)
13.18: Types of affidavit

Case Summary

The Plaintiff sued on his own behalf and on behalf of his deceased father for transfer of an interest in the family farm. The Defendant, the Plaintiff’s aunt, applied for Summary Dismissal of the Plaintiff’s Claim.

Master Robertson weighed the evidence before the Court in order to determine if the Plaintiff’s Claim should be summarily dismissed. The Plaintiff had presented hearsay evidence of the alleged oral contract between his father and grandfather. Master Robertson stated that, pursuant to Rule 13.18(1) and 13.18(2), this hearsay evidence could be entered to rebut a Summary Judgment Application, but hearsay evidence would not be admissible in that form at Trial. The Defendant sought to rely on Affidavit evidence sworn by another family member which was tendered in a separate Action which had been discontinued. Master Robertson stated that the Defendant could not use the evidence from the hearing without prior notice to the Plaintiff and the Court’s permission pursuant to Rule 6.11(f).

Master Robertson applied the test for Summary Judgment, and considered previous authority in deciding whether the record evidence of the Defendant provided a fair and just adjudication of the issue. Master Robertson noted that the Plaintiff had not provided much evidence in his favour. Master Robertson held that the Defendant’s likelihood of success at Trial was extremely high. Therefore the Application for Summary Judgment was granted and the Claim of the Plaintiff was dismissed.

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