4.31: Application to deal with delay
4.33: Dismissal for long delay

Case Summary

The Applicant brought an Application to dismiss the Action for delay pursuant to rule 4.31, and alternatively, pursuant to Rule 4.33

The Master found that, while the Defendant took no steps to initiate Questioning of one of the Plaintiffs, the Plaintiffs provided a weak excuse that the individual could not be questioned as he was in a nursing home and his son, who had power of attorney, would not cooperate in producing him. Despite this, Master Summers found that the Defendant proved that she suffered nonlitigation prejudice in the form of significant economic losses as a result of the delay, and granted the Application for dismissal of the Action pursuant to Rule 4.31.

Master Summers dismissed the Action pursuant to Rule 4.31, and discharged a certificate of lis pendens registered by the Plaintiff against title to a house of which the Defendant was the registered owner.

The Master briefly addressed Rule 4.33, finding that it was not applicable, as three years had not passed since the last Questioning in the matter and the date that the Defendant had filed its Application for dismissal.

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