1.2: Purpose and intention of these rules
1.5: Rule contravention, non-compliance and irregularities
9.16: By whom applications are to be decided

Case Summary

The Appellant started two Actions against the Respondents. After noting the Respondents in default in both Actions, the Appellant obtained Default Judgment. The Respondents successfully applied to set the Default Judgments aside and defend. The Appellant sought to appeal the Chambers Judge’s Decision setting the Default Judgments aside. The Appeal was dismissed.

The Appellant advanced several arguments.

First, he argued that the Chambers Judge made an overriding and palpable error by “devaluing the evidentiary weight accorded to his affidavits because of the date they were filed”. On the record, that was not the case. Any comments by the Chambers Judge in relation to the Appellant’s Affidavits related to the speediness with which the Appellant intended to proceed, not their credibility.

Second, the Appellant argued that the Chambers Judge contravened Rule 9.16, which requires a party applying to set aside a Default Judgment to apply before the same Applications Judge who granted it unless the Court orders otherwise.

The Court of Appeal found that the Chambers Judge did not err in deciding the Application by not referencing Rule 9.16. The Rule allows for a different Judge to decide the Application. Further, Rules 1.5(2) and (3) state that if there are procedural irregularities, an Application can be brought to cure them. However, if the Applicant takes further steps in the Action with knowledge of prejudice, it is precluded from applying to fix the procedural irregularity. The Appellant was aware that the set aside Application was before a different Judge and did not object.

Lastly, the Appellant argued that the Chambers Judge should have permitted him to question the Respondents on their Affidavits in support of their alternative relief sought, citing that cross-examination is an almost absolute right. However, the Chambers Judge did not decide the alternative relief sought by the Respondents and decided only that the test for setting aside the Default Judgments had been met.

Setting aside the Default Judgments was in accordance with Rule 1.2(1), which provides that the purpose of the Rules is to resolve claims fairly, timely and cost-effective way. There was no basis on which the Court of Appeal could intervene.

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