Focus On

CIVIL PROCEDURE - Default judgments - Requirement of debt or liquidated demand - Setting aside

Tuesday, January 05, 2021 @ 6:12 AM  

Lexis Advance® Quicklaw®
Appeal by the defendant from the dismissal of her application to set aside a default judgment against her and an order directing that $114,000 paid into court by the appellant, be paid to the respondent. The action arose from the parties’ relationship which started with business and moved to romance. The parties cohabited in the appellant’s residence between 2007 and 2012. The respondent alleged that by a promissory note, the appellant acknowledged that she owed him $114,000 payable upon availability of the funds or sale of her house. The claim alleged the respondent then advanced additional monies to the appellant and that she had not repaid any of the loans or made any repayments on the monies owed him. The respondent also alleged he had a beneficial interest in the house based on the agreement he would be repaid upon sale of the house, that he had a beneficial interest in the house as a result of repairs, improvements and general upkeep that he performed, and that he had a beneficial interest in the house because he assisted with paying the mortgage while the parties resided together as common law spouses.

HELD: Appeal allowed. The order dismissing the appellant’s application to set aside the default judgment and the default judgment were set aside. Default judgment was not available under Rule 3‑8(3) because the claim was not for recovery of money in a specified or ascertainable amount as required by the Rule. The respondent asserted a claim to property, beyond the monies allegedly lent to the appellant. The plea of a promissory note also did not allow the default judgment. The plea was that the time for payment on the promissory note was on the availability of funds or sale of the house. There was no allegation that funds were available, or the house was sold, or even that the amount of the default judgment was due and owing. This was an omission of a material fact required to establish liability. Taken by itself, this allegation in the notice of civil claim did not support a default judgment because it did not establish that any sum was owing when the application for the judgment was made. It could also not be said that the document, as pleaded, was a promissory note.

Tiamzon v. Vandt, [2020] B.C.J. No. 1907, British Columbia Court of Appeal, M.E. Saunders, G. Dickson and J. DeWitt-Van Oosten JJ.A., November 20, 2020. Digest No. TLD-January42021003