Morguard Real Estate Investment Trust v. Davidson

Morguard Real Estate Investment Trust v. Davidson

The order dismissing the application to set aside the default judgment was final for purposes of appeal because it finally disposed of the parties' rights in the Supreme Court (the appellant became liable for $300,000 plus costs) and the default judgment only became final for appeal purposes once the Rule 17(12)...

Source-derived case information.

Citation
2002 BCCA 66
Parties
Plaintiff (respondent): Morguard Real Estate Investment Trust; Defendant (appellant): Robin Davidson; Defendant: Curtis Hall
Court
British Columbia Court of Appeal
Jurisdiction
Canada
Judgment Date
1 February 2002
Procedural Posture
Civil Appeal From Order Dismissing Application to Set Aside Default Judgment / Applications for Directions on Whether Leave Required and Respondent's Motion to Dismiss Appeal; Appeal Set for Hearing
Outcome
Respondent's application to dismiss the appeal for failure to obtain leave dismissed; appeal may proceed to hearing; appellant awarded costs for applications
Legal Topics
Default Judgment, Setting Aside Default Judgment, Interlocutory Vs Final Order, Leave to Appeal
Source Language
english
Civil Procedure Appellate Practice Judgment and Enforcement Default Judgment Setting Aside Default Judgment Interlocutory Vs Final Order Leave to Appeal

Source-derived case record

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Parties

Morguard Real Estate Investment Trust

Plaintiff (respondent)

Robin Davidson

Defendant (appellant)

Curtis Hall

Defendant

Procedural Posture

Civil Appeal From Order Dismissing Application to Set Aside Default Judgment / Applications for Directions on Whether Leave Required and Respondent's Motion to Dismiss Appeal; Appeal Set for Hearing

Legal Issues

  1. 1 Whether an order dismissing an application to set aside a default judgment is interlocutory or final for the purposes of s.7 of the Court of Appeal Act
  2. 2 Whether leave to appeal to the Court of Appeal was required

Ratio Decidendi

The order dismissing the application to set aside the default judgment was final for purposes of appeal because it finally disposed of the parties' rights in the Supreme Court (the appellant became liable for $300,000 plus costs) and the default judgment only became final for appeal purposes once the Rule 17(12) remedy was exhausted; consequently leave to appeal was not required and the appeal was properly commenced by notice of appeal.

Court Disposition

Respondent's application to dismiss the appeal for failure to obtain leave dismissed; appeal may proceed to hearing; appellant awarded costs for applications

Orders

  • Dismiss Morguard's application to have the appeal dismissed for lack of leave to appeal
  • Direct that the appeal proceed to hearing as presently constituted