DATE: 20041130

DOCKET: C41538

COURT OF APPEAL FOR ONTARIO

RE:

DALE KAUZLARICK (Plaintiff) (Respondent) – and – AUTO MOTO LTD. and NIKOLA ELEZ (Defendants) (Appellants)

BEFORE:

LASKIN, MacPHERSON and LANG JJ.A.

COUNSEL:

Carol Street

for the appellant

Edward S.E. Kim

for the respondents

HEARD & ENDORSED:

November 26, 2004

On appeal from the order of Justice Erwin W. Stach of the Superior Court of Justice dated February 19, 2004.

A P P E A L B O O K E N D O R S E M E N T

[1] The issue on this appeal is whether Stach J. committed a reviewable error in exercising his discretion to refuse to set aside the judgment the respondent had obtained on default. We have concluded that he did not err. As Ms. Street acknowledged in her capable argument on behalf of the appellant, no explanation was offered for the lengthy delay in moving to set aside the default judgment. That alone is sufficient to dispose of this appeal.

[2] We add, however, that we accept Mr. Kim’s submission that the appellant’s main contention – he told the respondent the car had been salvaged – is nowhere to be found in the statement of defence.

[3] Accordingly, the appeal is dismissed with costs in the amount of $7,500, inclusive of disbursements and GST.