Master, I appear for the Defendant.
This is an application for an extension of
time for the Defendant to file and serve his affirmation in opposition to the
Plaintiff’s Order 14 application.
The Defendant first sought a consensual
extension and set out the reasons fully in correspondence. Consent was refused,
and the Defendant therefore seeks the Court’s directions. The substantive
hearing date fixed for 6 June 2025 is not sought to be disturbed.
Master, I rely on four focused points.
First, the explanation and diligence.
The Defendant’s opposition is
fact-sensitive. It turns on whether the Premises were rendered unfit for use
following the black rainstorm in late October 2023, and whether the force
majeure clause was engaged. To place that defence properly before the Court,
the Defendant must adduce factual material, including photographs and
assessments of damage and habitability. The Defendant has been actively
gathering this material, but given the extent of the damage and the need for
follow-up assessments, the evidence could not reasonably be completed within the
original timeframe. This is not a case of tactical delay.
Secondly, the timing and proportionality of
the request.
This is the Defendant’s first application
for any extension of time. It was made promptly once it became apparent that
the evidence could not be finalised in time. The 42 days sought is what is
realistically required to complete one further assessment cycle and prepare a
complete affirmation. The Defendant remains mindful of proportionality and is
prepared to accept a shorter extension or tailored directions if the Court
considers that appropriate.
Thirdly, prejudice.
There is no substantive prejudice to the
Plaintiff. The hearing date remains intact. Any prejudice to the Plaintiff is
procedural and capable of being addressed by case management directions. By
contrast, refusing the extension would cause substantive prejudice to the
Defendant, who would be required to meet a summary judgment application without
relevant evidence before the Court.
Finally, the proper use of Order 14.
Summary judgment is intended to prevent
delay only where the defendant clearly has no defence. Where the defence turns
on factual matters such as the condition of the Premises, the Court can only
fairly assess whether there are triable issues if the relevant evidence is
before it. Granting a short extension therefore accords with the proper
operation of Order 14.
In those circumstances, Master, we
respectfully ask that the extension of time be granted, with costs reserved or
in the cause. Unless I can assist any
further, those are the Defendant’s submissions.