Klaric v. Lessing

Klaric v. Lessing

The chambers judge did not err: the 25 October 2001 letter did not justify the appellant waiting and failing to apply for over four years; appellant failed to provide a satisfactory explanation for the delay and therefore did not meet the Miracle Feeds test, so the appeal is dismissed.

Citation
2006 BCCA 545
Parties
Respondent (plaintiff): Dragica Klaric; Appellant (defendant): Aaron M. Lessing
Court
British Columbia Court of Appeal
Jurisdiction
Canada
Judgment Date
5 December 2006
Procedural Posture
Civil Appeal (application to Set Aside Default Judgment) / Appeal to Court of Appeal
Outcome
Appeal dismissed with costs to respondent
Legal Topics
Setting Aside Default Judgment, Default Judgment, Delay and Excuse, Interpretation of Correspondence, Assessment of Damages
Source Language
English
Civil Procedure Property Law Mortgage/foreclosure Setting Aside Default Judgment Default Judgment Delay and Excuse Interpretation of Correspondence Assessment of Damages

Case Brief

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Parties

Dragica Klaric

Respondent (plaintiff)

Aaron M. Lessing

Appellant (defendant)

Procedural Posture

Civil Appeal (application to Set Aside Default Judgment) / Appeal to Court of Appeal

Legal Issues

  1. 1 Whether appellant provided a reasonable explanation for a four‑year delay in applying to set aside a default judgment
  2. 2 Whether the appellant satisfied the Miracle Feeds test for setting aside a default judgment
  3. 3 Proper interpretation of the 25 October 2001 letter from respondent's counsel

Ratio Decidendi

The chambers judge did not err: the 25 October 2001 letter did not justify the appellant waiting and failing to apply for over four years; appellant failed to provide a satisfactory explanation for the delay and therefore did not meet the Miracle Feeds test, so the appeal is dismissed.

Court Disposition

Appeal dismissed with costs to respondent

Orders

  • Appeal dismissed
  • Costs awarded to the respondent, Dragica Klaric