Stadnyk v. Allen

Stadnyk v. Allen

Leave to appeal was dismissed because the chambers judge properly applied the Miracle Feeds factors, found the defendant acted promptly, had an arguable defence and did not willfully fail to defend, and the appellate court will not interfere with the chambers judge's discretionary factual assessment absent clear error.

Citation
2003 BCCA 596
Parties
Appellant/plaintiff: Andrei Stadnyk; Respondent/defendant: Richard Allen
Court
British Columbia Court of Appeal
Jurisdiction
Canada
Judgment Date
6 October 2003
Procedural Posture
Civil Appeal (tort/assault; Setting Aside Default Judgment) / Application for Leave to Appeal From Chambers Order
Outcome
Application for leave to appeal dismissed; chambers judge's order setting aside interlocutory default judgment upheld.
Legal Topics
Default Judgment, Setting Aside Judgment, Service of Process, Leave to Appeal, Assessment of Damages
Source Language
English
Civil Procedure Torts Appeal Default Judgment Setting Aside Judgment Service of Process Leave to Appeal Assessment of Damages

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Parties

Andrei Stadnyk

Appellant/plaintiff

Richard Allen

Respondent/defendant

Procedural Posture

Civil Appeal (tort/assault; Setting Aside Default Judgment) / Application for Leave to Appeal From Chambers Order

Legal Issues

  1. 1 Whether the interlocutory default judgment should be set aside
  2. 2 Whether the defendant willfully or deliberately failed to defend
  3. 3 Whether service of the writ and statement of claim was effective

Ratio Decidendi

Leave to appeal was dismissed because the chambers judge properly applied the Miracle Feeds factors, found the defendant acted promptly, had an arguable defence and did not willfully fail to defend, and the appellate court will not interfere with the chambers judge's discretionary factual assessment absent clear error.

Court Disposition

Application for leave to appeal dismissed; chambers judge's order setting aside interlocutory default judgment upheld.

Orders

  • Application for leave to appeal dismissed