Balla et al. v. Fitch Research Corp. et al., (2000) 140 B.C.A.C. 253 (CA)

• Judge: Southin, Rowles and Mackenzie, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: June 29, 2000
• Jurisdiction: British Columbia
• Citations: (2000), 140 B.C.A.C. 253 (CA);2000 BCCA 448

Balla v. Fitch Research Corp. (2000), 140 B.C.A.C. 253 (CA);

    229 W.A.C. 253

MLB headnote and full text

Temp. Cite: [2000] B.C.A.C. TBEd. SE.021

Prabhakara Chowdary Balla and Trit Tek Research Ltd. (plaintiffs/appellants) v. Fitch Research Corporation, Fitch Instruments Inc., Golden Cadillac Resources Ltd., Decimal 10, Fitch Publishing, Venture Capital Finance Asia Ltd., Fitch Consulting Inc., Edward Stuart Fitch, Edward Stuart Fitch carrying on business as Fitch Research Corporation and Fitch Instruments Inc. and Golden Cadillac Resources Ltd. and Decimal 10 and Fitch Publishing and Venture Capital Finance Asia Ltd. and Fitch Consulting Inc., Modular Semiconductor Incorporated and Alliance Semiconductor Corporation (defendants/respondents)

(CA025630; 2000 BCCA 448)

Indexed As: Balla et al. v. Fitch Research Corp. et al.

British Columbia Court of Appeal

Southin, Rowles and Mackenzie, JJ.A.

July 26, 2000.

Summary:

The plaintiffs sued the defendants for damages for fraud, breach of trust, breach of fiduciary duty, punitive and exemplary damages. The plaintiffs obtained an order permitting them to serve two of the defend­ants located in the United States (Alliance and Modular Semiconductor Inc.) by double registered mail. Thereafter, the plaintiff obtained default judgment and an award of damages against all of the defendants. Alliance sought to set aside default judgment and damages as against it, asserting that the service was defective.

The British Columbia Supreme Court, in a decision reported in 5 B.C.T.C. 306, allowed the application. The plaintiffs appealed.

The British Columbia Court of Appeal allowed the appeal and remitted the question of whether default judgment should be set aside to the Supreme Court for cross-exam­ination of the deponents on their affidavits.

Editor's Note: See [1998] B.C.T.C. Uned. D09 for another case involving these parties.

Practice - Topic 3687

Evidence - Affidavits - Use of - Cross-examination of deponent - The defendant American corporation applied to set aside a British Columbia default judgment against it - An order for substituted ser­vice of the corporation had not been com­plied with and the plaintiffs' writ was now 10 years old and expired - At issue was whether the writ and statement of claim had nevertheless come into the hands of the corporation within one year of its issuance - Affidavit evidence on this crucial issue was in conflict - The British Columbia Court of Appeal remitted the matter back to the Supreme Court for cross-examination of the deponents on their affidavits.

Cases Noticed:

Barner v. Barner (1952), 7 W.W.R.(N.S.) 331 (B.C.S.C.), refd to. [para. 14].

Orazio v. Ciulla (1966), 59 D.L.R.(2d) 208 (B.C.S.C.), refd to. [para. 14].

Erickson v. Kamloops (City) (1993), 50 L.C.R. 81 (S.C.), refd to. [para. 14].

Rupertsland Mortgage Investment Ltd. v. Winnipeg (City) and Gemmill (Medical Officer of Health for Winnipeg) (1981), 25 Man.R.(2d) 29; 23 C.P.C. 208 (Co. Ct.), refd to. [para. 14].

Huising v. Doherty et al. (1993), 138 A.R. 312; 12 C.P.C.(3d) 237 (Q.B. Master), refd to. [para. 14].

Hope v. Hope (1854), 43 E.R. 534 (L.C.), refd to. [para. 15].

Rheault v. Rheault (1988), 27 B.C.L.R.(2d) 138 (C.A.), refd to. [para. 25].

Counsel:

Robert S. Anderson, for the appellants;

John L. Finlay and Catherine J. Parker, for the respondent, Alliance Semiconductor Corp.

This appeal was heard at Vancouver, British Columbia, on June 29, 2000, before Southin, Rowles and Mackenzie, JJ.A., of the British Columbia Court of Appeal. On July 26, 2000, Rowles, J.A., delivered the following judgment for the Court of Appeal.