MacKay v. MacMillan

MacKay v. MacMillan

The ex parte order renewing the execution order was set aside because the judgment creditor failed to adequately explain the nearly 20-year delay and the defendant showed prejudice (including prejudice to a non‑party joint tenant); however the defendant's application to set aside the original default judgment failed because, although an arguable defence existed, he did not establish a reasonable excuse for the 20-year delay. The court also directed that the appropriate mechanism to address the judgment asset vis-à-vis the prior bankruptcy is reappointment of a trustee under the BIA.

Citation
2009 NSSC 330
Parties
Plaintiff (judgment Creditor, Assignee of Blair Hendren): Keith MacKay; Defendant (judgment Debtor): Charles MacMillan
Court
Supreme Court of Nova Scotia
Jurisdiction
Canada
Judgment Date
6 November 2009
Procedural Posture
Civil Enforcement Execution and Sale of Land; Application to Set Aside Default Judgment / Application to Stay Execution and Sheriff's Sale and to Set Aside Default Judgment Following Ex Parte Renewal of Execution Order
Outcome
Ex parte order granting leave to renew execution order set aside; application to set aside default judgment dismissed; no costs awarded; court recommends reappointment of trustee to realize judgment asset.
Legal Topics
Execution Orders, Renewal of Execution Order, Stay of Execution, Setting Aside Default Judgment, Assignment in Bankruptcy, Intervention, Laches, Sale of Lands Under Execution
Source Language
English
Civil Procedure Bankruptcy and Insolvency Property Law Equity Execution Orders Renewal of Execution Order Stay of Execution Setting Aside Default Judgment +4 more

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Parties

Keith MacKay

Plaintiff (judgment Creditor, Assignee of Blair Hendren)

Charles MacMillan

Defendant (judgment Debtor)

Procedural Posture

Civil Enforcement Execution and Sale of Land; Application to Set Aside Default Judgment / Application to Stay Execution and Sheriff's Sale and to Set Aside Default Judgment Following Ex Parte Renewal of Execution Order

Legal Issues

  1. 1 Whether the ex parte order renewing the execution order should be set aside for unexplained delay and prejudice
  2. 2 Whether the default judgment should be set aside under Rule 37.13
  3. 3 Whether a stay of execution should be granted under Rules 53.13 and 52.09

Ratio Decidendi

The ex parte order renewing the execution order was set aside because the judgment creditor failed to adequately explain the nearly 20-year delay and the defendant showed prejudice (including prejudice to a non‑party joint tenant); however the defendant's application to set aside the original default judgment failed because, although an arguable defence existed, he did not establish a reasonable excuse for the 20-year delay. The court also directed that the appropriate mechanism to address the judgment asset vis-à-vis the prior bankruptcy is reappointment of a trustee under the BIA.

Court Disposition

Ex parte order granting leave to renew execution order set aside; application to set aside default judgment dismissed; no costs awarded; court recommends reappointment of trustee to realize judgment asset.

Orders

  • Ex parte order granting leave to renew the execution order is set aside.
  • Application to set aside the default judgment is dismissed.