The Court granted leave to both parties to discontinue their respective claims but imposed a term under UCPR r 12.3(2) precluding either party from commencing fresh proceedings on the same matters. The Court held that where a plaintiff failed to comply with court orders for preparation of a hearing, failed to serve any evidence, provided no adequate explanation for those failures, and sought discontinuance only shortly before a fixed hearing date, the dictates of justice under the Civil Procedure Act ss 56-61 supported barring fresh proceedings, notwithstanding that the claims had not been determined on the merits. The agreed indemnity costs order alone was insufficient to justify permitting the plaintiff a further opportunity to reformulate and re-litigate its claims in another court.
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