Ian Peddle

The defendant brought a motion to set aside a noting in default and a default judgment of $278,821.41.

The defendant's insurance adjuster had inadvertently missed communications from the plaintiffs' counsel, leading to the default.

Applying the five-part test from Mountain View Farms, the court found the failure to defend was due to inadvertence, the defendant moved promptly upon learning of the judgment, and there was an arguable defence on the merits.

The motion was granted and the default judgment was set aside.

Following a decision where the defendants' cross-motion to stay the plaintiff law firm's action pending an assessment of accounts was granted, both parties sought costs.

The defendants claimed $9,553.98 on a substantial indemnity basis, while the plaintiff claimed $24,611.67 on a partial indemnity basis.

The court found that there was divided success and that both sides had taken disproportionate and inappropriate steps in the litigation.

Consequently, the court exercised its discretion to make no order as to costs.