The Defendant Applicants sought to set aside a Default Judgment issued against them. After being added to the Action following a contested Application to Amend the Statement of Claim, the Applicants attempted to file an Amended Statement of Defence on April 13, 2017, however, they were prevented from filing because the Court record did not show a filed Amended Statement of Claim. The Applicants then attempted to again file the Statement of Defence on April 20, 2017, despite the Amended Statement of Claim still not appearing on the procedure card. In the meantime, and unbeknownst to the Applicants, the Applicants were noted in Default, and Default Judgment was entered on April 18, 2017. The Applicants subsequently became aware of the Default Judgment and moved to set it aside two days after becoming aware of it.

Topolniski J. applied the test for setting aside a Default Judgment under Rule 9.15(2), which requires the Applicant to demonstrate i) the Default was unintentional; ii) the Application to set aside the Default Judgment was brought as soon as the Applicant became aware of it; and iii) there is a good defence on the merits. Topolniski J. held that the Default was unintentional, as it “came to be in most unusual circumstances”. Justice Topolniski also found that the Application to set aside the Default Judgment was brought within days of the Applicant discovering it.

Topolniski J. confirmed that the applicable threshold for finding a good defence on the merits is establishing a triable issue of fact or law, and does not require establishing that ultimate success is likely. As a result, Topolniski J. set aside the Default Judgment.