lema j

9.15: Setting aside, varying and discharging judgments and orders

Case Summary

The Plaintiff in a matrimonial property Action applied for an Order for child support and related relief. The Defendant was properly served with the Application and Affidavit, but failed to attend the hearing. The Order sought by the Plaintiff was granted in the Defendant’s absence. The Defendant applied under Rule 9.15(1)(b) to set the Order aside, claiming that he did not appear because of an “accident or mistake”. The Defendant swore an Affidavit which described the mistake as failing to “properly note the date of attendance” and noting that he did not “intend to allow an Order of the kind granted” to go uncontested.

Lema J. held that failure to appear on account of an accident or mistake must demonstrate that non-attendance was inadvertent or unintentional, and that the interfering event must satisfy the “but for” test. The rationale of the Rule was described by Lema J. as being to remedy the injustice of an Order granted against a party who would have appeared, but for the interfering event. Justice Lema noted that choosing not to attend, or “effectively choosing not to attend as reflected in a lack of diligence” was not sufficient.

Justice Lema found that the Defendant had failed to describe what caused him to fail to properly note the date of the hearing, and inferred that it was as a result of either a lack of diligence, or a conscious decision to allow the litigation to proceed without him until he saw the Order granted against him, neither of which were an accident or mistake preventing attendance for the purposes of Rule 9.15. The Application to set aside the Order was dismissed.

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