Threemor Enterprises Limited v. Intar Corporation

Threemor Enterprises Limited v. Intar Corporation

Where noting in default occurred hastily, delay was short, no prejudice to the plaintiff was shown and a defence was available, the Court of Appeal will allow an appeal to set aside the noting in default and default judgment and grant an extension of time to deliver a statement of defence.

Source-derived case information.

Citation
C41170
Parties
Plaintiff/respondent: Threemor Enterprises Limited; Defendant/appellant: Intar Corporation; Defendant/appellant: Moldenhauer Developments (Islington Village) Inc., formerly known as 1306282 Ontario Inc.
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
14 May 2004
Procedural Posture
Civil / Appeal From Superior Court Motion and Default Judgment
Outcome
Appeal allowed; order of Wright J. dismissing the motion and subsequent default judgment set aside; noting in default set aside; time to deliver statement of defence extended; no costs of appeal; order of Moldaver J.A. extended.
Legal Topics
Setting Aside Default, Noting in Default, Extension of Time to Deliver Statement of Defence, Prejudice Assessment, Availability of Defence
Source Language
english
Civil Procedure Appeals Enforcement of Judgments Setting Aside Default Noting in Default Extension of Time to Deliver Statement of Defence Prejudice Assessment Availability of Defence

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Parties

Threemor Enterprises Limited

Plaintiff/respondent

Intar Corporation

Defendant/appellant

Moldenhauer Developments (Islington Village) Inc., formerly known as 1306282 Ontario Inc.

Defendant/appellant

Procedural Posture

Civil / Appeal From Superior Court Motion and Default Judgment

Legal Issues

  1. 1 Whether the noting in default and subsequent default judgment should be set aside
  2. 2 Whether the defendants demonstrated a proper basis to extend time to deliver a statement of defence
  3. 3 Whether the plaintiff suffered prejudice and whether a defence was available

Ratio Decidendi

Where noting in default occurred hastily, delay was short, no prejudice to the plaintiff was shown and a defence was available, the Court of Appeal will allow an appeal to set aside the noting in default and default judgment and grant an extension of time to deliver a statement of defence.

Court Disposition

Appeal allowed; order of Wright J. dismissing the motion and subsequent default judgment set aside; noting in default set aside; time to deliver statement of defence extended; no costs of appeal; order of Moldaver J.A. extended.

Orders

  • Order of Wright J. dismissing the motion and subsequent default judgment set aside
  • Noting of the defendants in default set aside