Mojahed v. Emami

Mojahed v. Emami

Master concluded service evidence by the process server established effective service on both applicants so default judgment could not be set aside as of right, but exercised discretion to set aside the default judgment because applicants intended to apply promptly, provided reasonable explanations for delay, demonstrated defences worthy of investigation and to avoid inconsistent outcomes given intertwined claims; accordingly default judgment against Mojahed and Habibi was set aside and matters will proceed on the merits, with costs allocated as ordered.

Citation
2016 BCSC 1796
Parties
Plaintiff; Defendant by Counterclaim: Majid Mojahed; Plaintiff; Defendant by Counterclaim: Darya Construction Inc.; Defendant; Plaintiff by Counterclaim: Ramin Emami; Defendant by Counterclaim: Ayoub Habibi
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
29 September 2016
Procedural Posture
Civil: Claim and Counterclaim / Application to Set Aside Default Judgment (reasons by Master)
Outcome
Default judgment set aside against Majid Mojahed and Ayoub Habibi; proceeding to determination on the merits for all parties.
Legal Topics
Default Judgment, Service of Process, Setting Aside Judgment, Discretion, Costs
Source Language
English
Civil Procedure Contract Corporate Law Default Judgment Service of Process Setting Aside Judgment Discretion Costs

Case Brief

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Parties

Majid Mojahed

Plaintiff; Defendant by Counterclaim

Darya Construction Inc.

Plaintiff; Defendant by Counterclaim

Ramin Emami

Defendant; Plaintiff by Counterclaim

Ayoub Habibi

Defendant by Counterclaim

Procedural Posture

Civil: Claim and Counterclaim / Application to Set Aside Default Judgment (reasons by Master)

Legal Issues

  1. 1 Whether service of the counterclaim on Mojahed and Habibi was effective
  2. 2 Whether default judgment should be set aside as of right (ex debito justitiae)
  3. 3 Whether the court should set aside the default judgment in the exercise of its discretion

Ratio Decidendi

Master concluded service evidence by the process server established effective service on both applicants so default judgment could not be set aside as of right, but exercised discretion to set aside the default judgment because applicants intended to apply promptly, provided reasonable explanations for delay, demonstrated defences worthy of investigation and to avoid inconsistent outcomes given intertwined claims; accordingly default judgment against Mojahed and Habibi was set aside and matters will proceed on the merits, with costs allocated as ordered.

Court Disposition

Default judgment set aside against Majid Mojahed and Ayoub Habibi; proceeding to determination on the merits for all parties.

Orders

  • Default judgment against Majid Mojahed and Ayoub Habibi set aside
  • Proceedings to continue to determination on the merits for all parties