Justice Cumming

The appellant appealed an order of a Small Claims Court Deputy Judge that set aside a default judgment and allowed the respondent to file a defence.

The Divisional Court found that the Deputy Judge exercised his discretion to allow the respondent to defend the claim on the merits and that there was no palpable and overriding error in that exercise of discretion.

The appeal was dismissed.

The plaintiff bank demanded payment of an outstanding loan and obtained an ex parte order under Rule 20.01(2) to serve a summary judgment motion with its statement of claim.

The defendants sought an adjournment, which the Master refused, granting summary judgment.

On appeal, the defendants argued that Rule 20.01(1) precludes hearing a summary judgment motion before a statement of defence is filed.

The Divisional Court dismissed the appeal, holding that Rule 20.01(2) allows for an accelerated return of the motion where special urgency is shown, requiring the defendant to expeditiously file a defence and respond.