Noble Moving Services Inc. v. Kohn

Noble Moving Services Inc. v. Kohn

The Provincial Court judge's refusal to set aside the default judgment was unreasonable because he failed to accept that the delay was adequately explained as counsel's neglect and misapplied the test for a meritorious defence; the matter is remitted to Provincial Court to re-hear the application to set aside the...

Source-derived case information.

Citation
2008 BCSC 434
Parties
Petitioner: Noble Moving Services Inc.; Petitioner: Mesut Vatansever; Respondent: Fredy Kohn; Respondent: Dina Kohn
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
14 April 2008
Procedural Posture
Judicial Review of Provincial Court Refusal to Set Aside Default Order / Decision Remitting Matter to Provincial Court for Re Hearing of Application to Set Aside Default Judgment
Outcome
Application allowed in part: Provincial Court judge's decision refusing to set aside default order set aside; matter remitted to Provincial Court to re-hear application to set aside default judgment subject to costs term.
Legal Topics
Setting Aside Default Judgment, Small Claims Rules R.17(2), Standard of Review (reasonableness), Contractual Limitation Clause, Attribution of Counsel Negligence
Source Language
english
Civil Procedure Contract Law Tort (negligence) Administrative Law Setting Aside Default Judgment Small Claims Rules R.17(2) Standard of Review (reasonableness) Contractual Limitation Clause +1 more

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Parties

Noble Moving Services Inc.

Petitioner

Mesut Vatansever

Petitioner

Fredy Kohn

Respondent

Dina Kohn

Respondent

Procedural Posture

Judicial Review of Provincial Court Refusal to Set Aside Default Order / Decision Remitting Matter to Provincial Court for Re Hearing of Application to Set Aside Default Judgment

Legal Issues

  1. 1 Whether the Provincial Court judge erred in refusing to set aside a default judgment
  2. 2 Whether delay attributable to counsel can excuse a party's delay in filing an application to set aside
  3. 3 Whether the petitioner demonstrated a meritorious defence or one worthy of investigation

Ratio Decidendi

The Provincial Court judge's refusal to set aside the default judgment was unreasonable because he failed to accept that the delay was adequately explained as counsel's neglect and misapplied the test for a meritorious defence; the matter is remitted to Provincial Court to re-hear the application to set aside the default and the respondents are to be compensated for costs to date.

Court Disposition

Application allowed in part: Provincial Court judge's decision refusing to set aside default order set aside; matter remitted to Provincial Court to re-hear application to set aside default judgment subject to costs term.

Orders

  • Order remitting the matter to Provincial Court to re-hear the application to set aside the default judgment
  • Order that the respondents be compensated for their costs to date