4.22: Considerations for security for costs order
4.31: Application to deal with delay
4.33: Dismissal for long delay
4.34: Stay of proceedings on transfer or transmission of interest
10.47: Liability of litigation representative for costs
13.18: Types of affidavit

Case Summary

The Plaintiff passed away in 2012, seven years after commencing an Action alleging breach of a lease agreement and damage to property upon which the Plaintiff operated a thoroughbred stable. As a result of the Plaintiff’s death and the transfer of interest to his sister, the Action was subject to a Stay of Proceedings under Rule 4.34. The Defendant, Compton, filed a motion to dismiss the Claim under both Rule 4.31 and Rule 4.33. The Application was adjourned. The Plaintiff’s sister then applied to the Court to continue the Action as the Litigation Representative under Rule 4.34. The Defendant subsequently filed an Application for Security for Costs pursuant to Rule 4.22. All of the Applications were heard jointly.

Shortly before his death, the Plaintiff and Compton discussed settlement. Compton’s evidence was that a property inspection did not take place, but the Plaintiff’s sister deposed that a property inspection occurred, though she did not suggest that she was in attendance. The Plaintiff’s sister’s evidence was not accepted by Master Hanebury because the Affidavit was not based on personal knowledge and no source of the information was provided, as required pursuant to Rule 13.18.

Master Hanebury considered whether a party could apply to dismiss the Action under Rule 4.33 after the Action had been stayed as a result of Rule 4.34. Compton argued that it could apply for dismissal for long delay under Rule 4.33 despite the Action being stayed by the operation of Rule 4.34. Master Hanebury did not find the argument persuasive, stating that Rule 4.33 was not engaged in this case and the only Application which could be made was under Rule 4.31 for long delay. Master Hanebury stated that the test for Rule 4.31 required that, in order to dismiss for delay, the Court must determine whether the delay was inordinate; whether the delay was inexcusable; and, assuming the prior criteria are met, whether the presumption of serious prejudice was met. The delay is measured from the last thing that materially advanced the Action. Master Hanebury observed that nothing had materially advanced the Action since 2007, and found the delay both inordinate and inexcusable. However, Compton could not show that it had been significantly prejudiced, so the Application under Rule 4.31 was dismissed.

Master Hanebury noted that Litigation Representatives for a Plaintiff are liable to pay Costs under Rule 10.47. In considering whether the Plaintiff’s Representative should provide Security for Costs, Master Hanebury observed that the Plaintiff’s company was struck in 1991 and that the Plaintiff’s estate had no assets.

The Court held that the Applications under Rule 4.31 and Rule 4.33 were dismissed, the Stay of Proceedings under Rule 4.34 was lifted and Security for Costs was ordered in the amount of $15,800.

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