Kitchen Expressions & Finishing Ltd. v. Cooper

Kitchen Expressions & Finishing Ltd. v. Cooper

Applying the Miracle Feeds test the court accepted a limited excuse for non‑appearance but found the applicant failed the crucial third prong: no affidavit or evidence established a meritorious defence because the evidence showed contracts were directly between the respondent and the petitioner and the site manager lacked authority to alter those contracts; therefore the Provincial Court did not err in refusing to set aside the default judgment and the appeal is dismissed.

Citation
2016 BCSC 1629
Parties
Petitioner: Kitchen Expressions & Finishing Ltd.; Petitioner: Bill Boucas; Respondent: Deborah Cooper
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
1 September 2016
Procedural Posture
Civil Appeal Petition to Set Aside Default Judgment / Appeal to Supreme Court of British Columbia From Provincial Court Default Order
Outcome
Appeal dismissed
Legal Topics
Setting Aside Default Judgment, Substitutional Service, Meritorious Defence, Agency and Authority of Site Manager, Extension of Time, Costs
Source Language
English
Contract Law Civil Procedure Construction Law Tort Negligence Small Claims Court Setting Aside Default Judgment Substitutional Service Meritorious Defence +3 more

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Parties

Kitchen Expressions & Finishing Ltd.

Petitioner

Bill Boucas

Petitioner

Deborah Cooper

Respondent

Procedural Posture

Civil Appeal Petition to Set Aside Default Judgment / Appeal to Supreme Court of British Columbia From Provincial Court Default Order

Legal Issues

  1. 1 Whether failure to file a defence was wilful or deliberate under Miracle Feeds test
  2. 2 Whether the application to set aside was made promptly
  3. 3 Whether the defendant had a meritorious defence worthy of investigation

Ratio Decidendi

Applying the Miracle Feeds test the court accepted a limited excuse for non‑appearance but found the applicant failed the crucial third prong: no affidavit or evidence established a meritorious defence because the evidence showed contracts were directly between the respondent and the petitioner and the site manager lacked authority to alter those contracts; therefore the Provincial Court did not err in refusing to set aside the default judgment and the appeal is dismissed.

Court Disposition

Appeal dismissed

Orders

  • Appeal dismissed
  • Costs to follow the event (to respondent)