The respondent applied to rescind the judgment because there was reasonable cause for not defending the action. To support its application, the respondent contended that he had been unaware of the judgment because he never received a copy of it or any other court documents.
The judgment was granted in default of appearance against a company (“the company”) and the applicant, its member. The summons was served on both parties by post to their respective addresses. The respondent was not aware of the default judgment at the time it had been granted.
The summons was served on the company, not the applicant.
The summons was served on the applicant in his personal capacity, meaning that he received it himself and was named as an individual (not as a representative of a company).
The summons was served on the applicant in his representative capacity, meaning that he received it as an official representative of a company or other legal entity.
The respondent was not aware of the default judgment at the time it had been granted and did not realize it until several months after it had been granted.
The respondent may be able to set aside a default judgment if:
- The respondent was not aware of the default judgment at the time it had been granted and did not become aware of it until several months after it had been granted.
- There is an error in procedure which would have affected the outcome if present at trial.
- The conduct by either party before or during trial justifies setting aside a judgment on fair grounds.
The respondent applied to rescind the judgment because there was reasonable cause for not defending the action. To support its application, the respondent contended that he had been unaware of the judgment because he never received a copy of it or any other court documents.
The court rejected the respondent’s argument and held that his failure to take any steps to defend himself was unreasonable and inexcusable, especially considering all previous correspondence from both parties’ attorneys showing that default proceedings were imminent. The court found no good reason for such inaction by him. The court further held that nothing could have been done by either party after judgment had been granted but before service had taken place, except perhaps an attempt at mutual consent as contemplated in paragraph 4(a) above. In this case, however, there was no evidence at all that either party attempted anything short of service through means other than those prescribed under section 7(2)(b).
Conclusion
The court held that they had not served the respondent with the summons in his personal capacity, and there was therefore no basis to rescind the judgment. It also held that there was no reasonable cause for not defending the action since the respondent could have taken steps to protect himself from being sued by serving an attorney as an agent under section 6 of the Attorneys Act.
