9.15: Setting aside, varying and discharging judgments and orders
11.27: Validating service

Case Summary

The Applicant appealed the Decision of Applications Judge Schlosser, which set aside a Default Judgment obtained by the Applicant against the Respondent.

The Applicant served the Respondent with a copy of the Statement of Claim by delivering it to the Respondent’s registered office. Due to the COVID-19 pandemic, the office was closed, and the Statement of Claim was not received by an employee of the Respondent. Thus, an envelope containing the Statement of Claim was placed under the door of the Respondent’s office. Pursuant to Rule 11.27(1), an Application seeking an Order validating service was made and then subsequently granted in favour of the Applicant (the “Validation Order”).

The Respondent filed an Application to set aside the Validation Order and the Noting in Default. Applications Judge Schlosser found that the Noting in Default was irregular because the method of service was not one permitted by the Rules. He also concluded that the Statement of Claim was not brought to the attention of the Respondent. As a result, he set-aside the Noting in Default and the Default Judgment and provided the Applicant 20 days to file a Statement of Defence.

Fraser J. upheld the Decision rendered by Applications Judge Schlosser’s concluding that the Court based its analysis on Rule 9.15(1) and 9.15(3), which allows the Court to set aside, vary or discharge a Judgment or an Order. Applications Judge Schlosser was entitled to rely on Rule 9.15(1) and 9.15(3), as there had been a procedural irregularity regarding service. The Court provided further justification for upholding the Decision, with Fraser J. agreeing that the Respondent did not strictly comply with the Rules, which likely resulted in the Applicant not being aware of the Statement of Claim.

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