Fish Maker LLC v. The “Zodiak” et al.

The Plaintiff in this matter had been ordered to post security for costs within a specified time. It failed to do so and the Defendant brought an application to dismiss the action for delay. The Plaintiff also brought an application for a 60 day extension of time within which to post the security. The Court set out the test for a time extension being: a continuing intention to pursue the application; that the application has some merit; that there is no prejudice to the other party; and that a reasonable explanation for the delay exists. The Court further noted that whether a reasonable explanation for granting the extension of time exists will depend on the facts of each case and that it was required to balance the elements bearing on a time extension to do justice between the parties. Applying these factors and considerations the Court denied the time extension. In reaching this conclusion the Court was influenced by the fact that the Plaintiff had not moved the action forward and by the fact that the Plaintiff had not attempted to cure the failure to post security in a timely manner.