Galliott v. MacDonald

Galliott v. MacDonald

Because the defendants did not notify the claimant of their application as required by s.23(2), the adjudicator would not set aside the default order without a hearing; instead the adjudicator ordered compliance with procedural steps and scheduled a hearing to decide the set-aside application.

Citation
2014 NSSM 46
Parties
Claimant: Derek Galliott; First Defendant: Ryan MacDonald; Second Defendant: Concrete Only Incorporated
Court
Nova Scotia Small Claims Court
Jurisdiction
Canada
Judgment Date
23 September 2014
Procedural Posture
Small Claims Court Claim / Application to Set Aside Order Under S.23; Pre Hearing Scheduling
Outcome
Application to set aside not granted at this stage; matter set for hearing and defendants required to take specified procedural steps
Legal Topics
Setting Aside Default Order, Service of Claim, Small Claims Court Act S.23, Notice Requirements, Personal Service, Application to Set Aside
Source Language
English
Civil Procedure Small Claims Service of Process Default Judgment Setting Aside Default Order Service of Claim Small Claims Court Act S.23 Notice Requirements +2 more

Case Brief

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Parties

Derek Galliott

Claimant

Ryan MacDonald

First Defendant

Concrete Only Incorporated

Second Defendant

Procedural Posture

Small Claims Court Claim / Application to Set Aside Order Under S.23; Pre Hearing Scheduling

Legal Issues

  1. 1 Whether the defendants were served with the notice of claim and form of defence
  2. 2 Whether the default order made under s.23(1) should be set aside under s.23(2)
  3. 3 Whether the defendants complied with the statutory requirement to notify the claimant of their application

Ratio Decidendi

Because the defendants did not notify the claimant of their application as required by s.23(2), the adjudicator would not set aside the default order without a hearing; instead the adjudicator ordered compliance with procedural steps and scheduled a hearing to decide the set-aside application.

Court Disposition

Application to set aside not granted at this stage; matter set for hearing and defendants required to take specified procedural steps

Orders

  • Defendants must file a defence with the court within 5 days of this Order
  • Defendants must personally serve their defence and this Order on the claimant Derick Galliott at least 10 days before the hearing of the application to set aside