The Defendants sought to appeal the dismissal of their Application to set aside Orders, granted ex parte, which extended the Plaintiffs’ time for service of a Statement of Claim (the “Appeal”).

The Court considered relevant factors when exercising discretion to extend the time for service, pursuant to Rules 3.26. This included: (1) there should be some evidence showing attempts to serve; (2) ideally, there should be some explanation for why the Defendant has not been served; (3) the purpose of renewal cannot be to delay; and (4) there should be no prejudice arising to the Defendant.

Having considered and applied those factors, the Court found that the Plaintiffs met the low threshold under Rule 3.26. Specifically, there was evidence of attempts to serve, a reasonable explanation for the delay, no intent to delay, and no prejudice to the Defendants. The Court also noted that the Plaintiffs acted diligently and filed the Application before the one-year deadline.

Nixon ACJ noted that the threshold pursuant to Rule 3.27 is higher than that for Rule 3.26. Nonetheless, the Plaintiffs satisfied this higher threshold by demonstrating that they had made diligent efforts, the delay was beyond their control, and that there was no prejudice to the Defendants.

Having found that the Plaintiffs acted in good faith and diligently pursued service, Associate Chief Justice Nixon held that both Orders were justified, and dismissed the Appeal with costs.