Otta v. Otta

Otta v. Otta

Applying the Miracle Feeds criteria the court found the defendant's delay was not wilful or inordinate, the application to set aside was timely or reasonably explained, and the proposed defence and counterclaim were at least worthy of investigation; accordingly the default judgment was set aside and the defendant granted liberty to file his counterclaim within 14 days, with costs to the plaintiff at Scale B.

Citation
2014 BCSC 16
Parties
Plaintiff (respondent): Antonin Otta; Defendant (applicant): Otakar Otta a.k.a. Otto Otta
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
8 January 2014
Procedural Posture
Civil Claim (notice of Civil Claim) / Application to Set Aside Default Judgment Under Rule 3 8(11) and for Leave to File a Counterclaim
Outcome
Default judgment set aside; defendant given liberty to file counterclaim; costs awarded to plaintiff at Scale B
Legal Topics
Default Judgment, Setting Aside Judgment, Counterclaim, Joint Ownership, Costs
Source Language
English
Civil Procedure Contract Property Equity Default Judgment Setting Aside Judgment Counterclaim Joint Ownership +1 more

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Parties

Antonin Otta

Plaintiff (respondent)

Otakar Otta a.k.a. Otto Otta

Defendant (applicant)

Procedural Posture

Civil Claim (notice of Civil Claim) / Application to Set Aside Default Judgment Under Rule 3 8(11) and for Leave to File a Counterclaim

Legal Issues

  1. 1 Whether the default judgment should be set aside
  2. 2 Whether the defendant acted wilfully or deliberately in failing to file a defence
  3. 3 Whether the defendant applied promptly or explained delay

Ratio Decidendi

Applying the Miracle Feeds criteria the court found the defendant's delay was not wilful or inordinate, the application to set aside was timely or reasonably explained, and the proposed defence and counterclaim were at least worthy of investigation; accordingly the default judgment was set aside and the defendant granted liberty to file his counterclaim within 14 days, with costs to the plaintiff at Scale B.

Court Disposition

Default judgment set aside; defendant given liberty to file counterclaim; costs awarded to plaintiff at Scale B

Orders

  • Default judgment entered October 8, 2013 is set aside
  • Defendant granted liberty to file the proffered counterclaim within 14 days of January 8, 2014