H.M.T.Q. In Right Of The Province of British Columbia v. Ismail

H.M.T.Q. In Right Of The Province of British Columbia v. Ismail

The order setting aside the default judgment is interlocutory and requires leave to appeal under s.7 of the Court of Appeal Act; the chambers judge acted within the discretionary authority conferred by Rule 17(12) in setting aside the default judgment and there was no compelling legal error warranting interference, so leave to appeal is refused.

Citation
2007 BCCA 55
Parties
Appellant (plaintiff): Her Majesty the Queen in Right of the Province of British Columbia; Respondent (defendant): Nazimun Ismail a.k.a. Nazimun Nisha Ismail a.k.a. Shabnam Nisa Ismail a.k.a. Nazimun Shabnam Ismail; Respondent (defendant): Abdul Aziz Ismail; Respondent (defendant): Abdul Hameed Ismail; Respondent (defendant): Yashmin Nisha Ismail
Court
British Columbia Court of Appeal
Jurisdiction
Canada
Judgment Date
31 January 2007
Procedural Posture
Application to Set Aside Default Judgment and Leave to Appeal / Chambers Application for Directions and Leave to Appeal From Interlocutory Order
Outcome
Leave to appeal refused; chambers order setting aside the default judgment stands.
Legal Topics
Setting Aside Default Judgment, Leave to Appeal, Interlocutory Vs Final Orders, Discretionary Relief Under Rules
Source Language
English
Civil Procedure Appellate Practice Judgment Enforcement Setting Aside Default Judgment Leave to Appeal Interlocutory Vs Final Orders Discretionary Relief Under Rules

Case Brief

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Parties

Her Majesty the Queen in Right of the Province of British Columbia

Appellant (plaintiff)

Nazimun Ismail a.k.a. Nazimun Nisha Ismail a.k.a. Shabnam Nisa Ismail a.k.a. Nazimun Shabnam Ismail

Respondent (defendant)

Abdul Aziz Ismail

Respondent (defendant)

Abdul Hameed Ismail

Respondent (defendant)

Yashmin Nisha Ismail

Respondent (defendant)

Procedural Posture

Application to Set Aside Default Judgment and Leave to Appeal / Chambers Application for Directions and Leave to Appeal From Interlocutory Order

Legal Issues

  1. 1 Whether an order setting aside a default judgment is interlocutory requiring leave to appeal
  2. 2 Whether the chambers judge erred in law by setting aside a default judgment despite finding the failure to enter an appearance was wilful and deliberate
  3. 3 Whether leave to appeal should be granted from the order setting aside the default judgment

Ratio Decidendi

The order setting aside the default judgment is interlocutory and requires leave to appeal under s.7 of the Court of Appeal Act; the chambers judge acted within the discretionary authority conferred by Rule 17(12) in setting aside the default judgment and there was no compelling legal error warranting interference, so leave to appeal is refused.

Court Disposition

Leave to appeal refused; chambers order setting aside the default judgment stands.

Orders

  • Leave to appeal is refused.