C. Jaglowitz

The plaintiff condominium corporation moved for summary judgment to recover a $196,620 advance payment made to the defendant contractor after terminating a hallway upgrade contract.

The court dismissed the motion, finding genuine issues for trial regarding the nature of the payment (whether a deposit, advance, or liquidated damages), the juristic reason for the defendant to keep it, and the identity of the proper corporate defendant.

The court concluded that a full appreciation of the evidence could not be achieved on the written record alone.

The defendants moved to set aside a default judgment obtained in a mortgage action.

Applying the three-part test under Rule 19.08 of the Rules of Civil Procedure—delay, explanation for default, and arguable defence—the court found the circumstances surrounding service explained the default and accepted the delay as largely attributable to litigation scheduling and negotiations.

However, the defendants failed to demonstrate a defence on the merits to the existence of the debt under the registered mortgage.

The court declined to set aside the default judgment but ordered a trial of an issue in the nature of a reference to address apportionment issues arising from the broader financial relationship between the parties.