Margem Chartering Co. v. Bosca ( The )
T-2418-96
Hargrave P.
4/7/97
8 pp.
Test to be applied when party fails to comply with provisions of peremptory (unless) order (orders that action should be struck out unless certain steps taken at certain times)-Peremptory order herein as to security for costs-Defendant applied for security for costs when heard plaintiff, Turkish company, might be in financial difficulty-Security was to have been provided by June 8, 1997-On June 10, plaintiff applied for and obtained motion to extend time to June 23-On June 25, as security still not posted, defendant moved to have action dismissed-Plaintiff countered ought to have further extension of time, to July 11, to provide security-Delay possibly major factor in making litigation expensive dispute resolution process to be avoided whenever possible-Peremptory (unless) orders meant to give courts and defendants greater control over delay-Courts encouraged to make "unless orders" more readily-Now clearly established once time has run on unless order, court's jurisdiction not ended-Two differing principles of law at issue when party seeks extension of unless order: litigant ought not to be deprived of right to have case heard where any damage to other parties compensable; litigant who fails to comply with peremptory order will not normally be permitted to continue action-Test applicable to enforcement of second principle: whether, in fact, failure in compliance intentional and contumelious-Thus question whether intentional flouting of order and whether breach due to extraneous circumstances: onus on plaintiff to convince court of this-Plaintiff established delay in payment of freight owed to it accounting for failure to comply with order-In result, provision of full security, by final date of July 11, shall be subject to three preconditions: statement of claim shall be amended and particulars provided by July 4 and plaintiff shall pay costs of motion, set at $600, by July 11, 1997.