By Ian Carruthers and Noel Harper
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We are back with another example of the ‘drop dead’ rule, in which a Master dismissed an action pursuant to Rule 4.33 and the plaintiff subsequently appealed to the Justice. Once again, follow along through the key events of this case and ask whether any of the undertaking responses described are a significant advance of the action:
On March 4, 2013, a statement of claim was filed seeking $650,000 from the defendants in unpaid funds towards a real estate transaction worth $1.675 million. The plaintiff was questioned on December 13, 2016, and gave the following three undertakings:
- To produce records in his possession relating to the acquisition of the lands and the construction of the house in question.
- To request bank copies of appraisals acquired for the property during construction and produce copies of any records received.
- To produce any documents in his possession relating to the initial deposit cheque of $200,000 and the return of this cheque as NSF (non-sufficient funds).
On September 22, 2017, having received no response, counsel for the defendants served an application to compel answers to the undertakings from the plaintiff. The answers were provided on October 9, 2017. The records provided by the plaintiff for each undertaking were as follows:
- A 2009 real estate purchase contract for the land that the house was built on.
- No appraisal records from the bank, which advised that any such documents had been destroyed.
- A document entitled Returned Item containing front and back images of the $200,000 cheque that the plaintiff had attempted to deposit into his account.
The Rule 4.33 application was filed on January 10, 2020.
Come back on Friday for the solution and a brief explanation of the case in question.