The plaintiff mortgagee brought a motion to set aside a noting in default on the defendants' counterclaim in a mortgage enforcement action.
The plaintiff's previous counsel failed to file a defence to the counterclaim, and the plaintiff was noted in default 22 days after the pleading was served.
The court applied the factors for setting aside a noting in default, finding that while there was an unexplained 12-month delay, the plaintiff would suffer significant prejudice if the default stood, whereas the defendants would suffer no prejudice.
The court concluded there were no extreme circumstances requiring the plaintiff to demonstrate a meritorious defence, and granted the motion to set aside the noting in default.
