Tiamzon v. Vandt

Tiamzon v. Vandt

Default judgment was a nullity and was set aside because the notice of civil claim did not plead a claim for recovery of money in a specified or ascertainable amount as required by R.3-8(3); the pleading advanced inconsistent causes (constructive trust and asserted promissory note), and the pleaded promissory note conditioned payment on availability of funds or sale of the house so no sum certain was due when judgment issued; further, the pleaded document did not meet the statutory definition of a promissory note under the Bills of Exchange Act.

Citation
2020 BCCA 336
Parties
Respondent/plaintiff: Edgardo Santos Tiamzon; Appellant/defendant: Nelita Aday Vandt
Court
British Columbia Court of Appeal
Jurisdiction
Canada
Judgment Date
20 November 2020
Procedural Posture
Civil Appeal From Supreme Court of British Columbia / Appeal From Order Dismissing Application to Set Aside Default Judgment and Ordering Payment Out of Funds Paid Into Court
Outcome
Appeal allowed; order dismissing application and ordering payment out set aside; default judgment set aside; appellant awarded costs of the two Supreme Court applications and s.23 Court of Appeal Act costs
Legal Topics
Default Judgment, Constructive Trust, Promissory Note, Certificate of Pending Litigation, Setting Aside Judgment, Pleadings Requirements
Source Language
English
Civil Procedure Equity Property Family/cohabitation Default Judgment Constructive Trust Promissory Note Certificate of Pending Litigation +2 more

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Parties

Edgardo Santos Tiamzon

Respondent/plaintiff

Nelita Aday Vandt

Appellant/defendant

Procedural Posture

Civil Appeal From Supreme Court of British Columbia / Appeal From Order Dismissing Application to Set Aside Default Judgment and Ordering Payment Out of Funds Paid Into Court

Legal Issues

  1. 1 Whether default judgment under Rule 3-8(3) was available for a claim for recovery of money in a specified or ascertainable amount
  2. 2 Whether the pleaded document constituted a promissory note under s.176(1) of the Bills of Exchange Act
  3. 3 Whether the pleadings cohered between a claim for a sum certain and an equitable claim (constructive trust)

Ratio Decidendi

Default judgment was a nullity and was set aside because the notice of civil claim did not plead a claim for recovery of money in a specified or ascertainable amount as required by R.3-8(3); the pleading advanced inconsistent causes (constructive trust and asserted promissory note), and the pleaded promissory note conditioned payment on availability of funds or sale of the house so no sum certain was due when judgment issued; further, the pleaded document did not meet the statutory definition of a promissory note under the Bills of Exchange Act.

Court Disposition

Appeal allowed; order dismissing application and ordering payment out set aside; default judgment set aside; appellant awarded costs of the two Supreme Court applications and s.23 Court of Appeal Act costs

Orders

  • Set aside the order dismissing the application to set aside the default judgment
  • Set aside the order directing payment out of the money held in court to the respondent