4.31: Application to deal with delay
7.3: Summary Judgment (Application and decision)

Case Summary

Kensington Master Builders (the “Builder”) was contracted to build a home for Kruger and Fick (the “Purchasers”). Upon demand for the first progress payment, the Purchasers refused. The Purchasers believed there were deficiencies which were significant enough to withhold payment. In 2013 the Builder sued under the contract and the Purchasers countersued. The Builder applied for Summary Judgment pursuant to Rule 7.3, and the Purchasers made a cross-Application to dismiss the Action for delay pursuant to Rule 4.31.

Rule 4.31 allows for an Action to be dismissed for delay when the delay is inordinate and inexcusable, as determined in the discretion of the Court. Master Schlosser found that the delays were attributable to both the Builder and the Purchasers. These delays were not in excess of what is ordinary, and there was no evidence of serious prejudice. Master Schlosser would not dismiss the Action for delay under Rule 4.31 and hence dismissed the Purchasers cross-Application.

Rule 7.3 allows the Court to assess the amount of the award and issue Judgment. Master Schlosser granted the Builder’s Summary Judgment Application. Master Schlosser quickly summarized the values as claimed by the Builder, implicitly accepted the values as claimed, and ordered the Purchasers pay the outstanding amount for the work as completed including interest pursuant to the contract.

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