Cherry Central Cooperative, Inc. v. D'Angelo

Cherry Central Cooperative, Inc. v. D'Angelo

The Court held that the remedy for setting aside a noting in default and default judgment lies under Rule 19.08 (not by collateral attack requiring Divisional Court appeal), but the appellant failed to demonstrate a good defence on the merits or sufficient evidentiary support for his asserted agreement, therefore leave to set aside the default judgment and to deliver a statement of defence was refused and the appeal dismissed with costs.

Citation
C35983
Parties
Plaintiff/respondent: Cherry Central Cooperative, Inc.; Defendant/appellant: Frank J. D'Angelo; Defendant/appellant: Schwartz Levitsky Feldman Inc., Trustee of the Estate of The New York Food Company Ltd., a bankrupt
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
19 November 2001
Procedural Posture
Collection / Appeal From Motion to Set Aside Default Judgment
Outcome
Appeal dismissed; motion to set aside default judgment denied; costs awarded to respondent.
Legal Topics
Default Judgment, Setting Aside Default, Rule 19.08, Bankruptcy Stay, Indemnity Agreement, Entire Agreement Clause, Jurisdictional Limit on Collateral Attack
Source Language
English
Civil Procedure Insolvency Contract Collections Default Judgment Setting Aside Default Rule 19.08 Bankruptcy Stay +3 more

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Parties

Cherry Central Cooperative, Inc.

Plaintiff/respondent

Frank J. D'Angelo

Defendant/appellant

Schwartz Levitsky Feldman Inc., Trustee of the Estate of The New York Food Company Ltd., a bankrupt

Defendant/appellant

Procedural Posture

Collection / Appeal From Motion to Set Aside Default Judgment

Legal Issues

  1. 1 Whether relief to set aside noting in default and default judgment is available under Rule 19.08
  2. 2 Whether the motions judge lacked jurisdiction by treating the application as a collateral attack requiring an appeal to the Divisional Court
  3. 3 Whether the appellant put forward a good defence on the merits to justify setting aside the default judgment

Ratio Decidendi

The Court held that the remedy for setting aside a noting in default and default judgment lies under Rule 19.08 (not by collateral attack requiring Divisional Court appeal), but the appellant failed to demonstrate a good defence on the merits or sufficient evidentiary support for his asserted agreement, therefore leave to set aside the default judgment and to deliver a statement of defence was refused and the appeal dismissed with costs.

Court Disposition

Appeal dismissed; motion to set aside default judgment denied; costs awarded to respondent.

Orders

  • Appeal dismissed with costs
  • No leave granted to set aside the default judgment or to deliver a statement of defence