POLOMA INVESTMENTS LTD v YUEN, 2016 ABCA 93
SLATTER, MCDONALD AND BIELBY JJA
9.15: Setting aside, varying and discharging judgments and orders
The Plaintiffs appealed a Decision which set aside a Default Judgment against the Defendant, Yuen. The Court noted that a Default Judgment may be set aside in certain circumstances, including where no notice of the Claim was received by the Defendant pursuant to Rules 9.15(1)(b) and (3)(c) of the Rules. The Plaintiffs argued that there is a requirement that the Applicant seeking to set aside a Default Judgment must show, not only that the document was not served on them, but that they did not know of the document and that the document’s contents did not otherwise come to their attention. The Court noted that the established common law test for setting aside a Default Judgment under prior Rule 158, now Rule 9.15(3), directed that a Court may set aside or vary any Judgment entered on default or to commit a Defence to be filed by a party who has been noted in default.
The Court concluded that there was evidence before the Chambers Judge which allowed an inference to be drawn that the Respondent had no knowledge of the Claim made against him. Further, he promptly launched the Application to Set Aside once he was served with the resulting Default Judgment and identified an arguable defence to the Action. No evidence of prejudice was advanced by the Appellants. In the result, the Appeal was dismissed.View CanLII Details