Zhang v. Ton

Zhang v. Ton

The application to set aside the chambers order was dismissed because credible evidence established personal service on the respondent on multiple occasions; her failure to respond amounted to wilful default (wilful blindness and blameworthy conduct); she failed to prove a serious miscarriage of justice given her exclusive access to financial records and unreliable affidavits; and there was no realistic risk of inconsistent judgments. The original order therefore stands and claimant awarded costs.

Citation
2014 BCSC 122
Parties
Claimant: Zhi Hong Zhang; Respondent/applicant: Kim Keu Ton also known as Kim Ke Ton
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
28 January 2014
Procedural Posture
Family Law Undefended Chambers Proceeding Resulting in Final Order / Application Under Rule 10 3(3) of the Supreme Court Family Rules to Set Aside the Chambers Order
Outcome
Application dismissed; chambers order not set aside; claimant awarded costs
Legal Topics
Service of Process, Default Judgment / Wilful Default, Set Aside Order, Miscarriage of Justice, Division of Family Property, Spousal Support, Child Custody, Unjust Enrichment, Risk of Inconsistent Judgments
Source Language
English
Family Law Civil Procedure Property Law Enforcement Service of Process Default Judgment / Wilful Default Set Aside Order Miscarriage of Justice +5 more

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Parties

Zhi Hong Zhang

Claimant

Kim Keu Ton also known as Kim Ke Ton

Respondent/applicant

Procedural Posture

Family Law Undefended Chambers Proceeding Resulting in Final Order / Application Under Rule 10 3(3) of the Supreme Court Family Rules to Set Aside the Chambers Order

Legal Issues

  1. 1 Whether the respondent was personally served with the proceedings and related documents
  2. 2 Whether the respondent was guilty of wilful delay or default such that the order cannot be reconsidered under Rule 10-3(3)
  3. 3 Whether a serious miscarriage of justice would occur if the order is not set aside

Ratio Decidendi

The application to set aside the chambers order was dismissed because credible evidence established personal service on the respondent on multiple occasions; her failure to respond amounted to wilful default (wilful blindness and blameworthy conduct); she failed to prove a serious miscarriage of justice given her exclusive access to financial records and unreliable affidavits; and there was no realistic risk of inconsistent judgments. The original order therefore stands and claimant awarded costs.

Court Disposition

Application dismissed; chambers order not set aside; claimant awarded costs

Orders

  • Application dismissed
  • Original chambers order dated June 18, 2012 remains in force