1.2: Purpose and intention of these rules
9.15: Setting aside, varying and discharging judgments and orders

Case Summary

The Applicant applied to set aside a Judgment issued in favour of the Respondent. The Application was made pursuant to Rule 9.15(1)(b), on the basis that the Applicant’s counsel did not appear because of an accident or mistake. After reviewing the case law, the Court held that setting aside the Judgment was not appropriate in these circumstances. The Court gave several reasons for coming to such a conclusion:

1.         The Court was not convinced that the evidence demonstrated that the Applicant had an intention to participate in the Action.

2.         Even if the Applicant could bring itself within the scope of Rule 9.15, the Court had to consider the prejudice to the other side if the Judgment was set aside and the parties were to have another Trial. The costs for legal fees had far exceeded the claimed amount.

3.         The Applicant suggested that it had a meritorious defence to the Counterclaim; the Respondent’s questioned this defence. The Court concluded that, unlike Rule 9.15(3), proving a meritorious defence for Rule 9.15(1)(b) was not required.

4.         To provide relief to the Applicant would not be consistent with the ideal of solving claims “fairly and justly”, in a “timely and cost-effective way”. Granting the Application would run counter to the purposes expressed in Rule 1.2(1).

Overall, the Court found that it was not appropriate in these circumstances to set aside the Judgment and dismissed the Application.

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