A defendant has a general law entitlement to dismissal of a plaintiff's claim where the plaintiff bears the onus of proof and withdraws from trial without fulfilling that onus, and this entitlement exists independently of UCPR r 476(2). An order dismissing proceedings under UCPR r 370 in the absence of a party who has not been served with the application or supporting affidavits involves a denial of procedural fairness. However, such an order will not be set aside where the incontrovertible evidence demonstrates that no different result would be reached on a re-hearing.
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