3.68: Court options to deal with significant deficiencies
7.3: Summary Judgment (Application and decision)
13.18: Types of affidavit

Case Summary

The Applicants applied for Summary Dismissal in accordance with Rule 7.3 which was granted in relation to a claim over alleged misrepresentations and other alleged misconduct. The Court reviewed the principles applicable to Summary Dismissal set out in the jurisprudence and found that that there was no triable issue, concluding on a balance of probabilities: that the parties did not enter into an agreement to negotiate in good faith; the alleged misrepresentations by the Applicants were not false and even if they were, they were not actionable; the Respondent’s claim in negligence was not made out; the Respondent’s claim against one of the Applicants for misfeasance in public office was not made out; the Respondent’s claim against one of the Applicants premised on vicarious liability for trespass was not made out; and the Respondents’ claim for diversion was out of time. The Court accordingly determined that the Applicants had disproven the claims against them and the Respondent had failed to raise a triable issue on any of the claims.

Among other issues, the Court considered whether an Affidavit made in support of the Respondent (the “Respondent’s Affidavit”) contained opinions and conclusions on matters that must be decided by the Court in accordance with Rule 3.68(4)(a). The Court noted that no party is entitled to give legal argument as evidence or to provide legal conclusions on issues that are in front of the Court, which is more properly the role of the Court in deciding the Application. The Court ultimately found that evidence given via Respondent’s Affidavit was not sufficient to raise triable issues.

The Court also considered whether an Affidavit in support of the Applicants (the “Applicants’ Affidavit”) improperly deposed to events that the Affiant did not personally witness in accordance with Rule 13.18(3). The Court determined that the Affiant did not provide any hearsay evidence, noting that the Affiant was not entitled to give evidence in support of the Application based on hearsay unless she relied on relevant and reliable documents that could be admitted at Trial. The Court accordingly found there was no issue with the admissibility of the Applicant’s Affidavit.

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