The moving party brought a motion under Rule 38.11 to set aside portions of a partition and sale order made after he failed to appear at the application hearing.
The court found that the failure to appear was due to an administrative mistake by his newly retained counsel.
Applying the five-part test for setting aside an order, the court determined that the moving party moved forthwith, would suffer prejudice if the order stood, and had an arguable case on the merits regarding his claim for a constructive trust over the property.
The motion was granted, the disputed portions of the order were set aside, and the remaining issues were stayed in favour of an ongoing family law proceeding between the parties.
