Battrum v. MacKenzie

Battrum v. MacKenzie

Default judgment entered April 6, 2000 is invalid because it was entered after the defendant's death on March 25, 2000 and before an executor was appointed and substituted; under s.59 of the Estate Administration Act and the authority of McCulloch v. Green an action pending against a deceased defendant is suspended...

Source-derived case information.

Citation
2001 BCSC 1309
Parties
Plaintiff: Dr. Herbert Asals Battrum; Defendant (deceased) / Estate Represented by Executor: Roderick Hector MacKenzie
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
25 September 2001
Procedural Posture
Civil Action for Return of Funds, Breach of Trust and Professional Negligence / Application in Chambers to Set Aside Default Judgment Entered After Defendant's Death
Outcome
Application granted in part: default judgment set aside; costs awarded to plaintiff at Scale 3; plaintiff directed to prosecute continuation in accordance with Estate Administration Act
Legal Topics
Default Judgment, Death of Defendant, Substitution of Executor, Estate Administration Act S.59, Setting Aside Judgment, Costs
Source Language
english
Estate Law Civil Procedure Tort Trusts Professional Negligence Default Judgment Death of Defendant Substitution of Executor +3 more

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Parties

Dr. Herbert Asals Battrum

Plaintiff

Roderick Hector MacKenzie

Defendant (deceased) / Estate Represented by Executor

Procedural Posture

Civil Action for Return of Funds, Breach of Trust and Professional Negligence / Application in Chambers to Set Aside Default Judgment Entered After Defendant's Death

Legal Issues

  1. 1 Whether a default judgment entered after the defendant's death and before appointment and substitution of an executor is valid
  2. 2 Whether the default judgment should be set aside
  3. 3 Appropriate allocation of costs given delay in bringing application to set aside

Ratio Decidendi

Default judgment entered April 6, 2000 is invalid because it was entered after the defendant's death on March 25, 2000 and before an executor was appointed and substituted; under s.59 of the Estate Administration Act and the authority of McCulloch v. Green an action pending against a deceased defendant is suspended until substitution, and therefore the default judgment must be set aside; costs of the setting aside application awarded to the plaintiff at Scale 3 due to the executor's unexplained delay.

Court Disposition

Application granted in part: default judgment set aside; costs awarded to plaintiff at Scale 3; plaintiff directed to prosecute continuation in accordance with Estate Administration Act

Orders

  • Default judgment dated April 6, 2000 is set aside
  • Costs of this application awarded to the plaintiff at Scale 3