The defendants appealed a Master's decision refusing to grant leave to defend under s. 54(3) of the Construction Lien Act.
The defendants' statement of defence had previously been struck for failing to comply with a court order regarding undertakings, a decision upheld on appeal.
The Divisional Court dismissed the appeal, holding that s. 54(3) applies only to a default in the delivery of pleadings, not where pleadings have been delivered and subsequently struck.
The court further noted that even if the section applied, the court retains discretion to refuse leave where the motion constitutes a collateral attack and an abuse of process.
