The parties were involved in a dispute about a failed construction project for certain residential properties located in the Defendant Town. The Plaintiffs sought an Order for the return of money it had posted to the Defendant as security. The Master who heard the initial Application directed that approximately ¾ of the money should be returned to the Plaintiffs with interest. The Defendant Town appealed the Master’s Decision before Justice Nielsen.

In support of its Appeal, the Defendant Town provided a new Affidavit sworn by its Chief Administrative Officer. Nielsen J. commented that under Rule 6.14(3), an Appeal from the Decision of a Master may be based on additional evidence that is relevant and material. Justice Nielsen held that the Defendant’s new Affidavit was relevant and material, and could be considered in order to determine the Appeal.

The main issue for the Appeal was whether the Master erred in granting partial Summary Judgment to the Plaintiffs. Justice Nielsen considered Rule 7.3, as well as current leading authorities, and summarized the test for Summary Judgment as:

[…] if a judge on a summary judgment application can make the necessary findings of fact, is able to apply the law to the facts and the process is proportionate, more expeditious and less expensive than a trial, summary judgment is appropriate. If a fair and just adjudication can be made in determining whether a claim has merit, it is appropriate for a court to consider summary judgment. A party’s position is without merit if the facts and law make the moving party’s position unassailable. A party’s position is unassailable if it is so compelling that the likelihood of success is very high. The key is whether the circumstances require viva voce evidence in order to properly resolve the case.

Justice Nielsen noted that the concept of “merit” under the test for a Summary Judgment Application is distinguished from the test for striking pleadings under Rule 3.68.

Nielsen J. considered the facts of this case, and held that a fair and just adjudication could not be made on the record before the Court. Therefore, the Master erred in ordering the money to be released to the Plaintiffs. The Defendant was entitled to continue to hold the full security pending a final determination of its entitlement to receive the money.