Application for leave to withdraw notice of intention to abide
Where notice filed without benefit of legal advice
Where party was unable to participate in the proceedings due to physical and mental health challenges
Where there is no material prejudice to the opposing party
Quick Take
1The court's discretion to grant leave to withdraw a notice of intention to abide is unfettered but must be exercised judicially, with the overriding consideration being the interests of justice; a defendant with an arguable case should not be shut out from presenting a defence unless there are substantial countervailing considerations.
2Leave is more likely to be granted where the notice was filed without the benefit of legal advice and in circumstances of mental or physical health impairment, particularly where the opposing party will in any event be required to meet the same defence and counterclaim from a co-defendant.
3Where prejudice to the opposing party from withdrawal is identified, the court may ameliorate it by imposing conditions on the grant of leave, such as limiting the scope of the withdrawing party's defence and counterclaim.
