9.15: Setting aside, varying and discharging judgments and orders

Case Summary

In an Action for damages resulting from the purchase and sale of a double-sided LED billboard, the Plaintiffs mistakenly served their Statement of Claim on the wrong “Andrew Yuen”. The Plaintiffs discovered their mistake and obtained an Order for substitutional service which was effected by leaving the Statement of Claim with Andrew Yuen’s tenant. The three Defendants did not respond to the Statement of Claim and the Plaintiffs obtained Default Judgment against all of them. Seven days after being served with a Notice of Intent to sell his residence, Mr. Yuen served the Plaintiffs with a Statement of Defence, an Application to set aside the Default Judgment and his supporting Affidavit.

Justice Lee agreed with the Plaintiffs that the Court did not need to make a determination as to Mr. Yuen’s actual knowledge of the Claim. The Court also noted that there was uncontradicted evidence that the Claim was left with the tenant, and nothing happened for seven months until a Writ was filed against the home.

Lee J. considered Rule 9.15 which allows the Court to vary or discharge a Judgment or Order. His Lordship determined that the Court should exercise its discretion in this case and set aside the Default Judgment to allow what appeared to be an arguable Defence. Justice Lee also awarded the Plaintiffs Costs to compensate for the prejudice caused by setting aside the Default Judgment.

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