The moving defendant sought to set aside a noting in default in a contract action for unpaid real estate commission arising from a commercial leasing arrangement.
Applying r. 19.03(1) of the Rules of Civil Procedure and the Franchetti/Kisel factors, the court held that the delay was adequately explained by prior counsel's health-related incapacity and reporting failures, that the moving party acted promptly once the default judgment motion came to its attention, and that the claim was straightforward.
The court found no material prejudice to the plaintiffs if the matter proceeded on the merits and held that the moving party had at least an arguable defence based on lack of contractual privity.
The noting in default was set aside and the moving party was granted 30 days to serve and file its statement of defence.
