› Adjournment of trial — discretion — delay in obtaining expert evidence — prejudice to opposing party — court resources
Contracts
› Discharge, breach and defences
› Termination — waiver — affirmation by conduct inconsistent with termination
Contracts
› Sale of business
› Condition warranty — plant and equipment — reasonable working order — set-off for breach
Contracts
› General contractual principles
› Due diligence — deemed satisfaction — failure to give notice within time
Quick Take
1A party that continues to perform a contract after knowledge of a breach capable of grounding termination — by taking possession, operating the business, paying instalments and collecting revenue — engages in conduct only consistent with affirmation and thereby waives the right to terminate for that breach.
2When assessing an adjournment application, a trial judge is entitled to weigh the effect on court resources and other litigants, the requesting party's delay in obtaining expert evidence, and the financial prejudice to the opposing party; an appellate court will not interfere merely because it would have struck the balance differently.
3A party that foreshadows expert evidence in its pleadings but delays retaining and instructing experts for months bears the consequences of that delay and cannot establish that the unavailability of expert reports at trial was unavoidable.
