The defendants brought a motion under rr. 19.08(2) and (3) of the Rules of Civil Procedure to set aside a default judgment and the underlying noting in default.
The court found that the default proceedings were irregularly obtained because the requisition for noting in default was filed before the expiry of the time to deliver a defence and while the defendant had already served a notice of intention to defend and a motion to strike the statement of claim.
The court also noted that the defendant moved promptly to set aside the default once he learned of it and had not been warned of the default proceedings.
Applying the principles governing irregularly obtained judgments, the court held that the defendants were entitled to have the default judgment and noting in default set aside without demonstrating a defence on the merits.
