The appellants appealed the dismissal of their motion to set aside a noting in default and default judgment obtained by the respondent in an action for payment of outstanding invoices for subcontractor work.
The Court of Appeal found that the Registrar lacked jurisdiction to sign judgment against the individual appellants for invoices billed to the corporate appellant, as the claims against them were for breach of trust and conversion, not for a debt or liquidated demand in money.
The court also found that the Registrar erred in awarding interest at 2% per month when this rate was not pleaded.
The motion judge applied the Kisel criteria too rigidly and failed to consider whether justice required the action to proceed on its merits.
The appellants had arguable defences and the respondent suffered no prejudice from setting aside the judgment.
