The plaintiffs appealed a Master's order dismissing their action against one defendant for failing to pay costs and serve an Affidavit of Documents.
The plaintiffs sought to introduce fresh evidence explaining that the defaults were caused by their previous counsel and that their newly retained counsel did not have sufficient time to prepare for the dismissal motion.
The Divisional Court admitted the fresh evidence, finding the due diligence test was met.
The court held the Master erred in denying an adjournment, as the lack of written material led to an erroneous conclusion about the plaintiffs' conduct.
The appeal was allowed and the action reinstated.
