A.J. Kania

The plaintiffs sought costs of $12,500 on a partial indemnity basis following a successful motion to set aside a default judgment.

The defendant argued for no costs or a maximum of $5,000, citing divided success due to a nunc pro tunc order granted in its favour.

The court found the defendant's aggressive and untenable approach to maintaining the default judgment warranted a costs award to the plaintiffs.

Costs were fixed at $10,000 inclusive of HST and disbursements.

The plaintiff brought an action against the defendant for improper seizure of leased vehicles.

The defendant filed a Statement of Defence and Counterclaim, adding the plaintiff's principal as a defendant by counterclaim, but failed to have it issued by the court.

The defendant obtained default judgment on the unissued counterclaim.

The plaintiff moved to set aside the default judgment, and the defendant cross-moved for a nunc pro tunc order deeming the counterclaim issued before the limitation period expired.

The court set aside the default judgment because the counterclaim was never issued.

The court granted the nunc pro tunc order, finding the defendant was ready to issue the claim within the limitation period and the plaintiff suffered no prejudice.