The Plaintiff applied to strike the Defendants’ Counterclaim in which the Defendant lawyers sued for their unpaid legal fees associated with their carriage of litigation that resulted in a Judgment in favour of the Plaintiff. Master Breitkreuz noted that counsel for the parties had exchanged correspondence about the indefinite extension of the deadline to file a Defence to the Counterclaim. The Defendants relied on this email as an agreement to preclude the Plaintiff from successfully applying to strike the Counterclaim for long delay pursuant to Rule 4.33.

Master Breitkreuz held that, even though the Defendants may have forgotten about the existence of this email, the Defendants were not precluded from using this email as the Applicant’s waiver of rights on a Rule 4.33 Application at this stage. The email in question could be fairly interpreted to mean that time will not start running until further notification. The Court further commented that a right must only be waived consciously, and not inadvertently. The Plaintiff’s Application was dismissed.