The defendants brought a motion in Small Claims Court to set aside a noting in default after failing to file a defence within the time prescribed by Rule 9.01 of the Rules of the Small Claims Court.
The court considered the test under Rule 11.06, requiring a reasonable explanation for the default, a meritorious defence, and that the motion be brought as soon as reasonably possible.
The evidence established that the default arose from miscommunication and inadvertence, that the defendants moved promptly once the error was discovered, and that they advanced a defence capable of succeeding if supported by evidence.
Emphasizing the principle in Rule 1.03 that proceedings should be determined on their merits where possible, the court exercised its discretion to set aside the default.
The defendants were permitted to file a defence within ten days, with limited disbursement costs awarded to the plaintiff.
