The Defendant previously applied for Summary Dismissal of the Plaintiff’s claim and also for Summary Judgment of the Defendant’s Counterclaim. Hall J. granted both Applications in the Defendant’s favour and the Plaintiff subsequently applied to re-open the case before the Order was entered, and to change or modify the Order in favour of the Plaintiff. In deciding the Application, Hall J. stated that Rule 9.13(a) gives the Court discretion to vary a Judgment or Order, but that the circumstances contemplated by the Rule are those where the Judge, on his or her own, has rethought the matter or wishes to clarify it. Rule 9.13(b) on the other hand contemplates an Application being made by a party to the proceeding to change or modify the Judgment or Order or Reasons for it.

With regard to Rule 9.13(b), Hall J. agreed with the decision in Evans v Sport Corp, [2011] AJ No 687 (Grasser J.), and stated that the Rule can be applied without the allowance or introduction of new evidence. The Plaintiff in this instance did not provide any new evidence. Hall J. noted that there was no good reason to modify or change the Decision, and that there was nothing new that was misunderstood by him or not brought to his attention. The Application was denied, however, Hall J. varied the original Order in regard to the time the Plaintiff had to vacate the premises as well as the Costs between Parties, because his original Order was made without hearing from counsel on those two issues.