W.D. Newton

The appellant appealed an order striking his statement of defence.

The Court of Appeal dismissed the appeal, noting that while a certain letter should have been before the motion judge, the result would have been the same given the history of the matter and the appellant's failure to explain the default or comply with outstanding undertakings.

Costs of $6,000 were awarded to the respondents.

The appellant's statement of defence was struck and he was subsequently noted in default.

He appealed to the Court of Appeal, seeking to set aside both the order striking his statement of defence and the noting of default.

The respondents raised a preliminary issue regarding jurisdiction, arguing the appellant must first move to set aside the noting of default under rule 19.03.

The Court of Appeal agreed and quashed the appeal, holding that a defendant must exhaust remedies in the court of first instance before an appeal lies to the Court of Appeal.