Digest: Farnell v Brendle, 2018 SKQB 258

Date:September 18, 2019

Reported as: 2018 SKQB 258

Docket Number: QB18245 , FLD 91/13 JCB

Court: Court of Queen's Bench

Date: 2019-09-18

Judges:

  • Currie

Subjects:

  • Civil Procedure � Application to Strike � Want of Prosecution
  • Family Law � Division of Family Property
  • Real Property � Certificate of Pending Litigation

Digest: The defendant applied for an order striking or staying the action for want of prosecution, or in the alternative, for an order that the petitioner be directed to take steps to move the proceedings along. The petitioner registered a homestead caveat against the respondent�s farm land in May 2012 and the petition was issued in March 2013. From March 2013 to June 2018 when this application was served, the respondent remarried, a homestead caveat was discharged, registered again, discharged again, and a certificate of pending litigation was registered against the respondent�s land, including land that he owned jointly with his mother after his father�s death. The last step in the litigation was in July 2014 when the respondent served a notice to disclose. The last step taken by the petitioner was in May 2013 when she served her property statement.
HELD: The test for striking an action for want of prosecution requires the applicant to show that: there was inordinate delay; the delay was inexcusable; and it is not in the interests of justice for the claim to proceed to trial. The delay of five years, from the petitioner�s last step in the proceedings, or four years, from the respondent�s last step, was inordinate. With respect to whether the delay was inexcusable, the court noted that the matter was a typical family law matter and the petitioner had not been diligent in moving the matter along. The petitioner did not offer a reason for the delay and the respondent did not indicate to the petitioner that he was content to leave the action dormant. The court concluded that the delay was inexcusable. The court considered the last factor, the interests of justice. The only potential prejudice to the respondent was the risk of some minor memory failure. The delay of four to five years was not found to be extreme and there had been an exchange of extensive financial and property information. The action appeared to be ready for a pre-trial conference. The respondent indicated that the action and certificate of pending litigation had been disastrous for his business. The court was not sure how the action impacted the respondent as
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