Andi Mackay

The plaintiff's action against the defendant Gary M. Cullen was dismissed due to the plaintiff's failure to pay a prior costs order of $80,820.75 within the 180-day period stipulated in a conditional order dated February 26, 2018.

An affidavit certifying non-payment was filed, triggering the dismissal without further notice.

The defendant Cullen sought costs on a substantial indemnity basis following a successful motion to stay the plaintiff's action due to an unpaid costs order.

The plaintiff, Apollo Real Estate Limited, argued that Cullen filed irrelevant materials and sought costs against Cullen, or alternatively, no costs or a reduced amount.

The court awarded partial indemnity costs of $4,000 to the defendant Cullen, payable within 60 days.

The defendant brought a motion to set aside a default judgment obtained in 2003 regarding a commercial lease guarantee.

The defendant argued he was never made aware of the Statement of Claim, which was served on his wife via an alternative to personal service in 1990.

The court accepted the defendant's explanation and applied the five discretionary factors from Mountain View Farms, finding it just to relieve the defendant from the consequences of default.

The court also found the original judgment erred in awarding a contractual rate of interest that was not pleaded.

The noting in default and judgment were set aside, allowing the defendant to file a Statement of Defence.