The moving defendant sought to set aside a noting in default and default judgment obtained against him by the plaintiff bank in an action to enforce a corporate guarantee.
The plaintiff had inadvertently noted the defendant in default before the 20-day deadline to defend had expired.
The court admitted a portion of a settlement-privileged email to assess when the defendant learned of the claim.
Applying the five-factor test, the court found the defendant moved promptly, had a plausible excuse for the default, and raised an arguable misrepresentation defence.
The court set aside the default judgment, concluding it was in the interests of justice to allow the defendant to defend the claim on its merits.
