Abdoolcader J:

The plaintiffs instituted these proceedings against the defendants for payment of a monetary claim, as a result of a Permit to Mine they executed in favour of the defendants over certain mining lands, in the aggregate sum of $33,278.41 being (a) a sum of $23,848.11 alleged to be due and owing to them when mining operations ceased on 30 April 1977, (b) $7,480.30 for the supply of electricity to the mine in May, 1977, as a result of the defendant failure to remove their equipment from the land, (c) $1,500 by way of indemnity in respect of a fine imposed on them for unlawful dumping, and (d) $450 being expenses incurred by them in the removal of some machinery from the mine hole.

The plaintiffs applied for summary judgment for this aggregate sum of $33,278.11 under O. 14 of the Rules of the High Court, 1957, and on 9 November 1977, the Senior Assistant Registrar granted conditional leave to the defendants to defend on their depositing in Court within two weeks the sum of $21,412.11 being the amount of the plaintiffs' claim for $23,848.11 under (a) set out above less a sum of $2,436 which the plaintiffs admitted should have been credited to the defendants. I would add that Counsel for the plaintiffs in his submission before the registrar also conceded that the defendants should have leave to defend for the contested sum of $500 in respect of the claim under (c) but apparently the registrar omitted to take this into consideration in making her order. The defendants then appealed to me in chambers against the order made by the registrar.

The writ in these proceedings was issued on 8 July 1977, and served on 29 July on the defendants who filed their defence and counterclaim on 12 August raising several points of defence and counterclaim, but the plaintiffs only took out their application for summary judgment for the full amount of their claim on 16 August In McLardy v. Slateum (890) 24 QBD 504 the Divisional Court held that, though it was the intention of the rules that the application should be made before a defence had been delivered in ordinary course, the plaintiff was not precluded from making it afterwards, but that in such an event the onus is cast on the plaintiff of showing why he did not apply sooner. The plaintiffs in this case have not discharged this onus and indeed Counsel appearing for them admitted this to be so.

The plaintiffs' General Manager swore the requisite statutory affidavit under O. 14 r. 1 in support of the application stating on oath that the facts set out in the Statement of Claim were within his own knowledge true, that the defendants were justly and truly indebted to the plaintiffs in the sum set out in the Statement of Claim and that he verily believed and was advised that there was no defence to this action. This was certainly not an honest affidavit as this same person then filed another affidavit, this time affirmed by him, on 27 September 1977, which presumably was the result of the defence and counterclaim delivered by the defendants. The defendants' Managing Partner swore an affidavit on 19 October in reply thereto setting out substantially the matters raised in the defence and counterclaim previously filed and delivered. The second affidavit of the plaintiffs' General Manager was a change in stance from the one he swore in support of the application for summary judgment and made some concessions and in particular admitted that a sum of $2,436 had in fact been received and had not been credited to the defendants, and casually concluded with the somewhat smug statement that he had been advised and verily believed that the defence of the defendants had no merit except to the extent indicated therein.

The defendants contended that they had paid a sum of $6,190.50 towards buffer stock contributions which would be repaid to the plaintiffs with dividends thereon of between $2,000 and $3,000 and that no allowance had been made for this, but in this regard while admitting this