Practicar Systems Inc. v. Saukarookoff

Practicar Systems Inc. v. Saukarookoff

Applying the Miracle Feeds test the court found defendants did not demonstrate a meritorious defence as to the Kelowna franchise debts or the promissory note and were not deliberately in default; the application to set aside was timely enough given settlement negotiations and prompt instructions to counsel; however there was a defence worthy of investigation as to the Penticton arrears because the material did not establish whether the specified $1,800 instalment was paid, so the default judgment was varied to reflect only the Kelowna and promissory note amounts and the Penticton portion and related interest were set aside; defendants granted 14 days to file a statement of defence; costs...

Citation
2007 BCSC 733
Parties
Plaintiff: Practicar Systems Inc.; Defendant (personal): Darryl Saukarookoff; Defendant (corporate): Cypress Car and Truck Rentals Ltd.
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
28 March 2007
Procedural Posture
Civil Franchise/debt Recovery / Application to Set Aside Default Judgment (rule 14; Subrule 12)
Outcome
Default judgment varied in part and set aside in part: judgment as to Penticton fees and interest set aside; judgment as to Kelowna and promissory note maintained and reduced to pleaded amounts; defendants granted leave to defend; costs awarded to plaintiff.
Legal Topics
Default Judgment, Setting Aside Judgment, Meritorious Defence, Promissory Note, Consent Judgment, Costs, Registration of Judgment on Title, Interest
Source Language
English
Civil Procedure Contracts Franchise Law Real Property Debt Recovery Default Judgment Setting Aside Judgment Meritorious Defence +5 more

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Parties

Practicar Systems Inc.

Plaintiff

Darryl Saukarookoff

Defendant (personal)

Cypress Car and Truck Rentals Ltd.

Defendant (corporate)

Procedural Posture

Civil Franchise/debt Recovery / Application to Set Aside Default Judgment (rule 14; Subrule 12)

Legal Issues

  1. 1 Whether defendants wilfully or deliberately failed to enter appearance or defence
  2. 2 Whether defendants applied to set aside judgment as soon as reasonably possible or have explanation for delay
  3. 3 Whether defendants have a meritorious defence or one worthy of investigation

Ratio Decidendi

Applying the Miracle Feeds test the court found defendants did not demonstrate a meritorious defence as to the Kelowna franchise debts or the promissory note and were not deliberately in default; the application to set aside was timely enough given settlement negotiations and prompt instructions to counsel; however there was a defence worthy of investigation as to the Penticton arrears because the material did not establish whether the specified $1,800 instalment was paid, so the default judgment was varied to reflect only the Kelowna and promissory note amounts and the Penticton portion and related interest were set aside; defendants granted 14 days to file a statement of defence; costs...

Court Disposition

Default judgment varied in part and set aside in part: judgment as to Penticton fees and interest set aside; judgment as to Kelowna and promissory note maintained and reduced to pleaded amounts; defendants granted leave to defend; costs awarded to plaintiff.

Orders

  • Default judgment varied to substitute amounts relating to Kelowna franchise and promissory note (see order details)
  • Judgment as to Penticton fees and interest set aside