Merk Mortgages Inc. v. Kutzscher

Merk Mortgages Inc. v. Kutzscher

The appellant's materials, including fresh evidence, consisted of bald conclusory allegations that failed to establish an arguable defence; absent an arguable defence, relief from the default judgment was not warranted and the motion judge's order was upheld.

Citation
2010 ONCA 707
Parties
Plaintiff (respondent): Merk Mortgages Inc.; Defendant (appellant): Ian Kutzscher; Defendant (appellant): Audrey Kutzscher
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
25 October 2010
Procedural Posture
Civil / Appeal From Superior Court of Justice Motion (application to Set Aside Default Judgment)
Outcome
Appeal dismissed with costs; enforcement suspended for 30 days
Legal Topics
Default Judgment, Relief From Judgment, Arguable Defence, Costs, Writ of Possession, Stay Pending Appeal
Source Language
English
Civil Procedure Mortgage Property Eviction Appeal Default Judgment Relief From Judgment Arguable Defence +3 more

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Parties

Merk Mortgages Inc.

Plaintiff (respondent)

Ian Kutzscher

Defendant (appellant)

Audrey Kutzscher

Defendant (appellant)

Procedural Posture

Civil / Appeal From Superior Court of Justice Motion (application to Set Aside Default Judgment)

Legal Issues

  1. 1 Whether appellant demonstrated promptness in moving against the default judgment
  2. 2 Whether appellant presented an arguable defence sufficient to obtain relief from the default judgment
  3. 3 Whether fresh evidence altered the assessment of whether an arguable defence exists

Ratio Decidendi

The appellant's materials, including fresh evidence, consisted of bald conclusory allegations that failed to establish an arguable defence; absent an arguable defence, relief from the default judgment was not warranted and the motion judge's order was upheld.

Court Disposition

Appeal dismissed with costs; enforcement suspended for 30 days

Orders

  • Appeal dismissed
  • Costs awarded to respondent in the amount of $10,000.00 inclusive of applicable taxes