Donald Berman Enterprises Ltd. v. 365946 B.C. Ltd. et al.

Donald Berman Enterprises Ltd. v. 365946 B.C. Ltd. et al.

An order setting aside a default judgment restores the parties to their original positions and does not finally dispose of their rights and is therefore interlocutory requiring leave under s.7; leave to appeal was refused because the proposed appeal lacked sufficient merit, was fact‑specific, and the prospect of success was dubious.

Citation
2000 BCCA 391
Parties
Plaintiff (appellant): Donald Berman Enterprises Ltd.; Defendant (respondent): 365946 B.C. Ltd. doing business as The Mighty $1, Store Plus; Defendant (respondent): 529855 B.C. Ltd. doing business as The Mighty $1, Store Plus; Defendant (respondent): 527222 B.C. Ltd. doing business as The Mighty $1, Store Plus; Defendant (respondent): Aloke Rashmi Paul; Defendant (respondent): James Keil
Court
British Columbia Court of Appeal
Jurisdiction
Canada
Judgment Date
23 June 2000
Procedural Posture
Civil Debt Action Default Judgment / Application for Leave to Appeal to Court of Appeal (in Chambers)
Outcome
Application for leave to appeal dismissed.
Legal Topics
Default Judgment, Setting Aside Judgment, Leave to Appeal, Interlocutory Vs Final Order, Discretion to Set Aside Judgment
Source Language
English
Civil Procedure Appeal Debt Recovery Default Judgment Setting Aside Judgment Leave to Appeal Interlocutory Vs Final Order Discretion to Set Aside Judgment

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Parties

Donald Berman Enterprises Ltd.

Plaintiff (appellant)

365946 B.C. Ltd. doing business as The Mighty $1, Store Plus

Defendant (respondent)

529855 B.C. Ltd. doing business as The Mighty $1, Store Plus

Defendant (respondent)

527222 B.C. Ltd. doing business as The Mighty $1, Store Plus

Defendant (respondent)

Aloke Rashmi Paul

Defendant (respondent)

James Keil

Defendant (respondent)

Procedural Posture

Civil Debt Action Default Judgment / Application for Leave to Appeal to Court of Appeal (in Chambers)

Legal Issues

  1. 1 Whether an order setting aside a default judgment is interlocutory or final for appeal purposes and thus requires leave under s.7 of the Court of Appeal Act
  2. 2 Whether leave to appeal should be granted based on the merits of the proposed appeal (application of Miracle Feeds test)
  3. 3 Whether the Chambers judge properly exercised discretion in setting aside the default judgment

Ratio Decidendi

An order setting aside a default judgment restores the parties to their original positions and does not finally dispose of their rights and is therefore interlocutory requiring leave under s.7; leave to appeal was refused because the proposed appeal lacked sufficient merit, was fact‑specific, and the prospect of success was dubious.

Court Disposition

Application for leave to appeal dismissed.

Orders

  • Leave to appeal dismissed.