Power v. Krystal

Power v. Krystal

The application satisfied the statutory two‑pronged test: the Defendant applied within the appeal period, provided affidavits explaining service difficulties and a prima facie defence and counterclaim; therefore the Quick Judgment was set aside and the Execution Order stayed pending the filing and adjudication of the defence and counterclaim.

Citation
2007 NSSM 32
Parties
Claimant/respondent: Susan Power; Defendant/applicant: Andrew G. Krystal
Court
Nova Scotia Small Claims Court
Jurisdiction
Canada
Judgment Date
23 May 2007
Procedural Posture
Small Claims / Application to Set Aside Quick Judgment and Stay Execution; Pre Trial
Outcome
Quick Judgment Order dated April 4, 2007 set aside; Execution Order dated April 17, 2007 stayed; Defendant ordered to file Defence and Counterclaim forthwith; hearing scheduled.
Legal Topics
Quick Judgment, Setting Aside Judgment, Service of Process, Stay of Execution, Defense and Counterclaim
Source Language
English
Civil Procedure Enforcement Small Claims Quick Judgment Setting Aside Judgment Service of Process Stay of Execution Defense and Counterclaim

Case Brief

Summary, issues, holding and outcome

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Parties

Susan Power

Claimant/respondent

Andrew G. Krystal

Defendant/applicant

Procedural Posture

Small Claims / Application to Set Aside Quick Judgment and Stay Execution; Pre Trial

Legal Issues

  1. 1 Whether the Quick Judgment should be set aside under the Small Claims Court Act
  2. 2 Whether the Execution Order should be stayed pending determination of a filed defense and counterclaim
  3. 3 Whether the Defendant demonstrated a prima facie defense and excusable failure to file a defense within the 10 day period

Ratio Decidendi

The application satisfied the statutory two‑pronged test: the Defendant applied within the appeal period, provided affidavits explaining service difficulties and a prima facie defence and counterclaim; therefore the Quick Judgment was set aside and the Execution Order stayed pending the filing and adjudication of the defence and counterclaim.

Court Disposition

Quick Judgment Order dated April 4, 2007 set aside; Execution Order dated April 17, 2007 stayed; Defendant ordered to file Defence and Counterclaim forthwith; hearing scheduled.

Orders

  • Order of April 4, 2007 (claim SCCH 278061) set aside
  • Execution Order dated April 17, 2007 in claim SCCH 278061 stayed