S. Kabir

The defendants brought a motion to set aside a noting in default.

The plaintiffs had commenced an action for breach of trust and unjust enrichment, and noted the defendants in default after they failed to deliver a Statement of Defence.

The defendants' daughter, acting as attorney for property for her father who suffered from vascular dementia, explained the delay was due to inadvertence and difficulty locating documents.

The court found the defendants demonstrated an intent to defend, the delay was not significant, and there was no prejudice to the plaintiffs.

The motion was granted, the noting in default was set aside, and the daughter was appointed litigation guardian for her father.

The plaintiffs brought a motion in writing for default judgment against the defendants, who had been noted in default in an action for breach of trust and unjust enrichment regarding a property dispute.

The court noted that it was unclear whether the defendants had been served with the motion record.

Exercising its discretion under Rule 19.02(3) of the Rules of Civil Procedure, the court adjourned the motion and ordered the plaintiffs to serve the motion record on the defendants, emphasizing that it is better practice to notify defendants that a claim is about to be considered for judgment.