The question that I have to decide is whether there is a triable issue and whether the facts alleged by the plaintiff are sufficient to justify the case proceeding further.
By section 33 of the Act, breach of this duty is punishable as a criminal offence, triable both summarily and on indictment.
Mr Thorley submitted that there is a ‘good triable action on both sides on all issues.’
The court might then dismiss the motion, rule that there were only certain issues that needed a full hearing or decide that there were no triable issues regarding the entire application.
In such a case there is simply no triable issue of provocation.
I am satisfied these paragraphs raise triable issues.
Many offences are triable either way.
The onus of establishing that there is no triable issue is on the moving party, in this case the purchaser.
Leave was granted for the bringing of this motion by Justice Cullity and it is for me to decide whether or not there is a triable issue such as to get this matter to proceed.
The s. 4 offence is triable either way, with a maximum penalty of five years.