Selwyn John Hicks

The appellants successfully appealed orders from the Superior Court of Justice that had reinstated a default judgment and permitted the sale of certain property.

The appeal was allowed because the respondent failed to make full and fair disclosure of material facts concerning the appellants' alleged default and participation in the action when attending before the court without notice to the appellants.

The appellants were self-represented throughout most of the proceedings and only retained counsel a few months before the appeal was argued.

The court awarded costs to the appellants on a partial indemnity basis, finding their claim for substantial or full indemnity costs to have no basis and their partial indemnity claim to be excessive and disproportionate.

The appellants appealed orders of the Superior Court of Justice dismissing their motion to set aside a reinstated default judgment and authorizing the sale of their property to satisfy the judgment.

The original action was commenced in 2001 and resulted in a default judgment of approximately $86,000.

The judgment was subsequently set aside, then reinstated by Brown J. in 2008 on an ex parte basis.

The appellants moved to set aside the reinstatement, but the motion judge dismissed their motion.

The Court of Appeal allowed the appeal, finding that the respondent failed to make full and fair disclosure of material facts when appearing before Brown J. without notice to the appellants, which was a sufficient basis to set aside the judgment.