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Rules of the Superior Courts

Order: 37

Hearing of proceedings commenced by summary summons

1. Every summary summons indorsed with a claim (other than for an account) under Order 2 to which an appearance has been entered shall be set down before the Master by the plaintiff, on motion for liberty to enter final judgement for the amount claimed, together with interest (if any), or for recovery of land, with or without rent or mesne profits (as the case may be) and costs, and, in the case of an action for the recovery of land for non-payment of rent, to ascertain the amount of rent due. Such motion shall be for the first available day, as the Master may fix, not being less than four clear days from the service thereof upon the defendant, and shall be supported by an affidavit sworn by the plaintiff or by any other person who can swear positively to the facts showing that the plaintiff is entitled to the relief claimed and stating that in the belief of the deponent there is no defence to the action. A copy of any such affidavit shall be served with the notice of motion.

2. Save in so far as the Court shall otherwise order, a motion for liberty to enter judgement under this Order shall be heard on affidavit: provided that any party desiring to cross-examine a deponent who has made an affidavit filed on behalf of the opposite party may serve upon the party by whom such affidavit has been filed a notice in writing requiring the production of the deponent for cross-examination, and unless such deponent is produced accordingly his affidavit shall not be used as evidence unless by the special leave of the Master or the Court, as the case may be. In cases in which the Master has jurisdiction, he shall have the same power as the Court to hear oral evidence.

3. The defendant may show cause against such motion by affidavit, or (except in actions for the recovery of land other than for non-payment of rent), by offering to bring into Court the sum indorsed on the summons. Such affidavit shall state whether the defence alleged goes to the whole or to part only, and (if so) to what part, of the plaintiff's claim. The Court may order the defendant, or, in the case of a corporation, any officer thereof, to attend and be examined upon oath, or to produce any leases, deeds, books or documents, or copies of or extracts from any of them.

4. Upon the hearing of any such motion, the Master, in all uncontested cases, may deal with the matter summarily, and may give liberty to enter judgement for the relief to which the plaintiff may appear to be entitled and, for that purpose, in the case of an action for the recovery of land for non-payment of rent, may ascertain the amount of rent due, or he may dismiss the action and generally may make such order for the determination of the action as may seem just.

5. If, in any case in which a plaintiff is entitled to apply to the Master for liberty to enter final judgement under any of the preceding rules of this Order, the plaintiff claims interest on the whole or any part of the sum of money for which the plaintiff is entitled to apply to the Master as aforesaid between the date on which the cause of action accrued and the date of judgement under section 22 of the Courts Act, 1981, the Master shall transfer the application when in order for hearing by the Court, to the Court list for hearing on the first opportunity. The said application shall be supported by an affidavit sworn by the plaintiff or some other person who can positively swear to the facts showing that the plaintiff is entitled to the relief claimed including such interest stating that in the belief of the deponent there is no defence to the action.

6. In contested cases, the Master shall transfer the case, when in order for hearing by the Court, to the Court list for hearing on the first opportunity; and, for this purpose, the Master may extend the time for filing affidavits and give such directions and adjourn the case before himself as he shall think fit. The Master may also, on consent, adjourn the case for plenary hearing as if the proceedings had been originated by plenary summons, with such directions as to pleadings, discovery, settlement of issues or otherwise as may be appropriate.

7. Upon the hearing of any such motion by the Court, the Court may give judgement for the relief to which the plaintiff may appear to be entitled or may dismiss the action or may adjourn the case for plenary hearing as if the proceedings had been originated by plenary summons, with such directions as to pleadings or discovery or settlement of issues or otherwise as may be appropriate, and generally may make such order for determination of the questions in issue in the action as may seem just.

8. Except in actions for the recovery of land for non-payment of rent, if it appear that the defence set up by the defendant applies only to a part of the plaintiff's claim, or that any part of his claim is admitted, the plaintiff shall have judgement forthwith for such part of his claim as the defence does not apply to or as is admitted, subject to such terms, if any, as to suspending execution, or the payment of the amount levied or any part thereof into Court by the sheriff, the taxation of costs, or otherwise, as the Court may think fit; and the defendant may be allowed to defend as to the residue of the plaintiff's claim.

9. If it appears to the Court that any defendant has a good defence to or ought to be permitted to defend the action, and that any other defendant has not such defence and ought not to be permitted to defend, the former may be permitted to defend, and the plaintiff shall be entitled to enter final judgement against the latter, and may issue execution upon such judgement without prejudice to his right to proceed with his action against the former.

10. Leave to defend may be given unconditionally or subject to such terms as to give security, or time and mode of trial, or otherwise as the Court may think fit.

11. If, on the hearing of any motion under this Order, it shall appear that any claim which could not have been specially indorsed under Order 2 has been included in the indorsement on the summons, the Master or the Court, as the case may be, may forthwith amend the indorsement by striking out such claim, or may deal with the claim specially indorsed as if no other claim had been included in the indorsement, and allow the action to proceed as respects the residue of the claim.

12. In any case of difficulty or doubt the Master may transfer the case to the Court list for hearing notwithstanding that he might have had jurisdiction to deal with the case himself under this Order.

13. Where a summary summons has been indorsed with a claim for an account under Order 2, or where the indorsement on a summons involves taking an account, and the defendant fails to appear, the Master shall forthwith make an order for the proper accounts, with all necessary inquiries and directions.

14. Where a summary summons has been indorsed with a claim for an account under Order 2, or where the indorsement on a summons involves taking an account, and the defendant does not after appearance, by affidavit or otherwise, satisfy the Court that there is some preliminary question to be tried, the Court shall forthwith make an order for the proper accounts, with all necessary inquiries and directions.

15. An application for such order as is mentioned in rule 13, or rule 14, shall be made by motion on notice, and be supported by an affidavit, when necessary, filed on behalf of the plaintiff, stating concisely the grounds of his claim to an account. The application may be made at any time after the time for entering an appearance has expired.