Goldcrest Distribution Ltd v McCole & Ors [2016] EWHC 1571 (Ch) (30 June 2016)

Goldcrest Distribution Ltd v McCole & Ors [2016] EWHC 1571 (Ch) (30 June 2016)

The claimant demonstrated real prospects of successfully defending the counterclaim on all four substantive issues (regulated mortgage contract, s.284 void disposition, trust for the daughter, undue influence), raising triable issues suitable for trial. Although the claimant's application to set aside was not made promptly and the default was serious, the existence of real prospects of success outweighed the delay. The Deputy Master was not wrong to grant declaratory relief on default judgment in the circumstances, but the judgment should be set aside to allow the claimant to defend the counterclaim.

Citation
[2016] EWHC 1571 (Ch)
Parties
Claimant/applicant: Goldcrest Distribution Limited; First Defendant: Charles Joseph McCole; Second Defendant/respondent: Mary Orr McCole; Third Defendant: Jeremy Willmont, trustee in bankruptcy of Charles Joseph McCole
Jurisdiction
England and Wales
Judgment Date
30 June 2016
Procedural Posture
Chancery Division Civil Claim (possession and Declaratory Relief) / Application to Set Aside/vary Default Judgment Under CPR 13.3
Outcome
Application granted; default judgment set aside.
Legal Topics
Default Judgment, Setting Aside Judgment, Regulated Mortgage Contracts, Bankruptcy and Void Dispositions, Trusts of Land, Undue Influence, Declaratory Relief, Relief From Sanctions
Civil Procedure Insolvency Property Law Trusts and Equity Financial Regulation Default Judgment Setting Aside Judgment Regulated Mortgage Contracts +5 more

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Parties

Goldcrest Distribution Limited

Claimant/applicant

Charles Joseph McCole

First Defendant

Mary Orr McCole

Second Defendant/respondent

Jeremy Willmont, trustee in bankruptcy of Charles Joseph McCole

Third Defendant

Procedural Posture

Chancery Division Civil Claim (possession and Declaratory Relief) / Application to Set Aside/vary Default Judgment Under CPR 13.3

Legal Issues

  1. 1 Whether the default judgment on the counterclaim should be set aside or varied under CPR 13.3
  2. 2 Whether the claimant has a real prospect of successfully defending the counterclaim
  3. 3 Whether there is some other good reason to set aside or vary the judgment

Ratio Decidendi

The claimant demonstrated real prospects of successfully defending the counterclaim on all four substantive issues (regulated mortgage contract, s.284 void disposition, trust for the daughter, undue influence), raising triable issues suitable for trial. Although the claimant's application to set aside was not made promptly and the default was serious, the existence of real prospects of success outweighed the delay. The Deputy Master was not wrong to grant declaratory relief on default judgment in the circumstances, but the judgment should be set aside to allow the claimant to defend the counterclaim.

Court Disposition

Application granted; default judgment set aside.

Orders

  • Default judgment of 17 February 2016 set aside as against the Second Defendant's counterclaim.
  • Claimant granted permission to file and serve a defence to counterclaim.