Ankush Sondhi

The defendants moved to set aside a default judgment obtained by the plaintiff in a mortgage dispute involving the sale of a property and alleged construction deficiencies.

The court considered whether to release funds from the sale, vacate a writ of execution, set aside the default judgment, consolidate proceedings, and set a timetable for summary judgment.

Applying the established five-factor test, the court found the motion to set aside the default judgment was not brought promptly, lacked a plausible explanation for the default, and that the balance of prejudice and the integrity of the administration of justice weighed against granting the relief.

The motion was dismissed, but the court ordered the release of certain funds and vacated the writ of execution on consent.

No costs were awarded to either party.

The appellants appealed the dismissal of their application to set aside a Notice of Sale and stay a pending sale related to a vendor takeback mortgage default.

They argued the redemption amount was inflated due to an illegal interest rate and unjustified charges, prejudicing their ability to obtain financing.

The Court of Appeal dismissed the appeal, finding the issue moot as the property had been sold and no stay was sought pending appeal.

The court noted evidentiary problems and stated that the questions of amounts owing were better suited for adjudication in the outstanding mortgage action.

The applicant mortgagors sought to set aside a Notice of Sale issued by the respondent mortgagee, arguing that the notice and a subsequent mortgage statement claimed unlawful interest rates and fees.

The court found that while the 18% interest rate charged on arrears likely violated section 8 of the Interest Act, the original Notice of Sale was valid as the disputed amounts were not sufficient to invalidate it.

Furthermore, the applicants were unable to obtain sufficient financing to redeem the mortgage even if the disputed charges were removed.

The application to stay the sale was dismissed, with disputed funds from the sale ordered to be paid into court.