Great West Foods Ltd. v. Meadow Gardens Golf Course (1979) Ltd.

Great West Foods Ltd. v. Meadow Gardens Golf Course (1979) Ltd.

The default judgment was set aside because the applicant satisfied the Miracle Feeds test: he did not willfully or deliberately fail to defend given the circumstances and evidence about cooperative meetings and life changes; he applied promptly upon learning of the judgment; and he demonstrated a meritorious defence worthy of investigation (measurement discrepancy affecting liability). The affidavit material supported these conclusions and service had not been proven definitively.

Citation
2017 BCSC 1228
Parties
Plaintiff; Defendant by Counterclaim: Great West Foods Ltd.; Defendant; Plaintiff by Counterclaim: Meadow Gardens Golf Course (1979) Ltd. doing business as Meadow Gardens Golf Club; Third Party/defendant by Counterclaim; Defendant by Counterclaim: Michael Publicover
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
2 June 2017
Procedural Posture
Civil Claim Involving Unpaid Invoices and Counterclaim; Application to Set Aside Default Judgment / Application to Set Aside Default Judgment Following Substituted Service and Entry of Default Judgment
Outcome
Application to set aside the default judgment granted.
Legal Topics
Setting Aside Default Judgment, Substituted Service, Service by Social Media (facebook), Sufficiency of Affidavit of Service, Meritorious Defence
Source Language
English
Civil Procedure Service of Process Default Judgment Contract (commercial Sale of Goods) Setting Aside Default Judgment Substituted Service Service by Social Media (facebook) Sufficiency of Affidavit of Service +1 more

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Parties

Great West Foods Ltd.

Plaintiff; Defendant by Counterclaim

Meadow Gardens Golf Course (1979) Ltd. doing business as Meadow Gardens Golf Club

Defendant; Plaintiff by Counterclaim

Michael Publicover

Third Party/defendant by Counterclaim; Defendant by Counterclaim

Procedural Posture

Civil Claim Involving Unpaid Invoices and Counterclaim; Application to Set Aside Default Judgment / Application to Set Aside Default Judgment Following Substituted Service and Entry of Default Judgment

Legal Issues

  1. 1 Whether the defendant (Publicover) willfully or deliberately failed to enter an appearance or file a defence
  2. 2 Whether substituted service (Facebook) and other service steps were sufficient to constitute service
  3. 3 Whether the application to set aside was brought promptly after learning of the default judgment

Ratio Decidendi

The default judgment was set aside because the applicant satisfied the Miracle Feeds test: he did not willfully or deliberately fail to defend given the circumstances and evidence about cooperative meetings and life changes; he applied promptly upon learning of the judgment; and he demonstrated a meritorious defence worthy of investigation (measurement discrepancy affecting liability). The affidavit material supported these conclusions and service had not been proven definitively.

Court Disposition

Application to set aside the default judgment granted.

Orders

  • Default judgment dated September 22, 2015 in favour of Meadow Gardens against Michael Publicover set aside.
  • Parties to resolve costs between themselves (no immediate costs order entered).