Gary Marcuccio

Following the dismissal of the defendant's motion to set aside a noting in default, the successful responding parties sought their costs.

The court awarded partial indemnity costs to the responding parties, finding no exceptional circumstances to depart from the general rule under Rule 57.03 that the successful party on a motion is entitled to costs payable forthwith.

The moving party defendant sought to set aside a noting in default and to strike an affidavit she had previously sworn.

The underlying action arose from an ATV accident where the moving party was the driver and the plaintiff was a passenger.

The moving party had previously sworn an affidavit claiming ownership of the ATV, leading to the dismissal of the action against her common-law spouse.

After the plaintiff's claim was settled by the insurers, they sought subrogation against the moving party, who then claimed she had lied about owning the ATV to protect her spouse's assets.

The court dismissed the motion to set aside the noting in default, finding that doing so would cause substantial prejudice to the innocent insurers who had relied on her representations.

The request to strike the affidavit was also dismissed as moot and inappropriate for a preliminary motion.

The applicant, the surviving spouse and residuary beneficiary of the deceased's estate, applied for the return of $125,000 transferred by the deceased to her son and daughter-in-law shortly before her death.

The court found that the $35,000 cheque to the daughter-in-law was a valid gift, as hearsay evidence of the deceased's intention was admissible and corroborated, rebutting the presumptions of resulting trust and undue influence.

However, the $90,000 cheque to the son was not proven to be a gift, as the son's evidence lacked corroboration and contained inconsistencies.

The son was ordered to return the $90,000 to the estate.