Dosanjh v. Singh

Dosanjh v. Singh

Leave to appeal was granted because there was a serious question to be tried given the absence of service of the sale application and prompt consultations with solicitors; a partial stay was appropriate: the accounting judgment for rent and the order requiring the appellant to vacate were stayed pending appeal and net sale proceeds must be held in trust, but the actual sale of the property was not stayed because the balance of convenience did not favour delaying the sale.

Citation
2010 BCCA 425
Parties
Respondent / Plaintiff: Jaswinder Kaur Dosanjh; Appellant / Defendant: Rupinder Singh
Court
British Columbia Court of Appeal
Jurisdiction
Canada
Judgment Date
29 September 2010
Procedural Posture
Civil Action Partition and Damages; Application to Set Aside Default Judgment and Order for Sale / Chambers Appeal for Directions, Leave to Appeal and Stay Application
Outcome
Leave to appeal granted; partial stay granted.
Legal Topics
Default Judgment, Setting Aside Judgment, Order for Sale of Property, Leave to Appeal, Stay of Execution, Accounting, Occupational Rent, Fraudulent Divorce
Source Language
English
Civil Procedure Property Law Family Law Appeal and Stay Default Judgment Setting Aside Judgment Order for Sale of Property Leave to Appeal +4 more

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Parties

Jaswinder Kaur Dosanjh

Respondent / Plaintiff

Rupinder Singh

Appellant / Defendant

Procedural Posture

Civil Action Partition and Damages; Application to Set Aside Default Judgment and Order for Sale / Chambers Appeal for Directions, Leave to Appeal and Stay Application

Legal Issues

  1. 1 Whether leave to appeal was required for the dismissal of the application to set aside the default judgment and for refusal to reconsider the order for sale
  2. 2 Whether the application to set aside the default judgment was made promptly and whether the appellant had a meritorious defence worthy of investigation
  3. 3 Whether a stay of the order for sale and the order to vacate should be granted pending appeal and on what terms

Ratio Decidendi

Leave to appeal was granted because there was a serious question to be tried given the absence of service of the sale application and prompt consultations with solicitors; a partial stay was appropriate: the accounting judgment for rent and the order requiring the appellant to vacate were stayed pending appeal and net sale proceeds must be held in trust, but the actual sale of the property was not stayed because the balance of convenience did not favour delaying the sale.

Court Disposition

Leave to appeal granted; partial stay granted.

Orders

  • Leave to appeal the order dismissing the application to set aside the default judgment and reconsider the order for sale and the judgment for rent is granted
  • Stay granted of the judgment in respect of occupational rent and collected rent until disposition of the appeal