Wein J.

The plaintiff filed a very late factum in a leave application, necessitating an adjournment.

The defendant requested that the leave application be dismissed due to the unreasonable delay.

The court declined to dismiss the application, noting the severe consequence of losing the right to litigate on the merits, but awarded $2,000 in costs to the defendant payable forthwith for the wasted court time.

The applicants moved to set aside two orders regarding their claimed beneficial interest in their son and daughter-in-law's matrimonial home.

The first order converted their application into an action, and the second ex parte order vested exclusive title in the daughter-in-law after the applicants failed to comply with the first order's filing deadlines.

The Divisional Court set aside the ex parte order under Rule 37.14(1)(a) because the applicants had indicated an intention to appeal, but affirmed the initial order as the motion to set it aside was not brought forthwith.

The respondent on an appeal from the Small Claims Court brought a motion before a judge of the Divisional Court to dismiss the appeal for delay.

The appellant argued that the court lacked primary jurisdiction to hear the motion.

The court agreed, finding that under Rule 61.13(1) of the Rules of Civil Procedure, a motion to dismiss an appeal for delay must be brought before the Registrar of the Divisional Court.

The court ordered the matter to be set down before the Registrar on an expedited basis and awarded costs of the motion to the respondent.