Derek L. Chou

This endorsement addresses the costs arising from a denied motion by the defendant, Diana Tilbert, to set aside a default judgment.

The plaintiff, Kimberly Gillespie, sought substantial indemnity costs, while the defendant argued for partial indemnity or no costs, citing professional negligence by her former counsel.

The court, applying Rule 57.01(1), found the plaintiff to be the successful party on the motion.

While acknowledging the defendant's prior ineffective representation, the court determined that the defendant's own delay in acting did not warrant the plaintiff bearing her own costs.

The court rejected the claim for substantial indemnity costs, finding no malicious or unreasonable conduct by the defendant that warranted judicial rebuke.

Partial indemnity costs were awarded to the plaintiff.

The defendant brought a motion to set aside a noting in default and default judgment.

She argued her former counsel was negligent in advancing her defence and that she acted diligently upon discovering this.

The court applied the factors from Mountain View Farms v. McQueen and found that while the defendant had a plausible explanation for the initial default, her continued reliance on her former counsel after realizing his negligence was unreasonable.

The court also found the proposed defence had modest merits and that setting aside the judgment would cause greater prejudice to the plaintiff.

The motion was dismissed.