Pettersen v Jordan Sandman Smythe Ltd
- Court
- Court of Appeal
- Judgment
- 5 July 1988
Areas of law
Judgment analysis
AI-generated summary
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Facts
This was an appeal against a summary judgment. The appellant's defence was based on an 'admittedly arguable counterclaim' which was argued to qualify as a defence by way of set-off. The Court of Appeal found this argument unconvincing. During the hearing, the court asked counsel for the respondent whether they could realistically resist a High Court application for a stay of execution. Counsel conceded they could not. Following this, counsel for both parties conferred and agreed to settle the appeal by consent on terms set out by the court.
Held
- As the appeal was settled by consent, there is no binding ratio on the substantive issue. However, the Court provided clear procedural guidance that when a defendant raises an arguable counterclaim as a set-off against a summary judgment application, they should also apply in the alternative for a stay of execution to allow all issues to be determined in a single hearing.
Orders
By consent: 1. The appeal is dismissed. 2. Execution of the judgment is stayed on terms to be agreed by the parties regarding the hearing of the counterclaim. 3. The appellant is to pay the respondent's costs of the appeal, fixed at $1250, plus reasonable disbursements as fixed by the Registrar.
Key passages1
In cases where a defence of set-off is raised based on an arguable counterclaim against a summary judgment application, it is desirable for reasons of expedition and expense to not only resist the judgment but also to apply in the alternative for a stay of execution.
“In cases where a defence of set-off is raised in respect of an arguable counterclaim it is desirable on the grounds of expedition and expense not merely to resist the entry of summary judgment but also to apply in the alternative for a stay of execution if such is desired so that all issues are disposed of and the parties know where they stand after a single hearing before the Master.”