The Defendant sought Summary Dismissal of the Plaintiff’s Action and Summary Judgment on its Counterclaim.

In its assessment the Court noted that, in the context of an Application for Summary Dismissal, the Court “must accept as true, the facts averred by the party opposing the application, unless those facts have been disturbed in cross examination of the witnesses giving evidence on behalf of the respondent”. The Court held that where the evidence in the Applicant’s Affidavits contradicted the evidence advanced by the Respondent in its Affidavits, the evidence of the Applicant must be disregarded, as conflicts in evidence can only be resolved at Trial. However, the Court went on to hold that where the evidence adduced, whether it is through Affidavits, Cross Examination on Affidavits or in Questioning in the overall Action, is of assistance to the Respondent, the Court may consider it in determining the Application. Stated another way, the Court assumes that the facts deposed to or elicited by the Respondents are true, and then determines whether, on that assumption, a Summary Dismissal of the Claim and/or Summary Judgment on the Counterclaim should be granted. The only exception to that general rule is where “the Applicant has cross examined the Respondent and has obtained an admission contrary to the facts alleged by the Respondent in opposing the Application”.

Based on the evidence advanced, both on behalf of the Applicant and the Respondent, the Court granted the Applications, dismissing the Plaintiff’s Claim and granting Summary Judgment on the Defendant’s Counterclaim.