Poloma Investments Ltd. et al. v. Yuen et al., [2016] A.R. TBEd. AP.019

• Judge: Slatter, McDonald and Bielby, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: April 04, 2016
• Citations: [2016] A.R. TBEd. AP.019;2016 ABCA 93

Poloma Inv. Ltd. v. Yuen, [2016] A.R. TBEd. AP.019

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Currently being edited for A.R. - judgment temporarily in rough form.

Temp. Cite: [2016] A.R. TBEd. AP.019

Poloma Investments Ltd. and Helen Sinclair (appellants/plaintiffs) v. Andrew Yuen (respondent/defendant) and Simon Yuen and 1234083 Alberta Ltd. carrying on business under the names "Nyue8 Import and Nyue8 Import Ltd." (not parties to the appeal/defendants)

(1503-0267-AC; 2016 ABCA 93)

Indexed As: Poloma Investments Ltd. et al. v. Yuen et al.

Alberta Court of Appeal

Slatter, McDonald and Bielby, JJ.A.

April 4, 2016.

Summary:

The plaintiffs commenced an action against the defendants respecting the plaintiffs' purchase of a billboard from the corporate defendant. The plaintiffs obtained a default judgment. One of the individual defendants applied to set aside the default judgment.

The Alberta Court of Queen's Bench, in a decision reported at [2015] A.R. TBEd. SE.096, allowed the application. The defendants appealed.

The Alberta Court of Appeal dismissed the appeal.

Practice - Topic 6197

Judgments and orders - Setting aside default judgments - Grounds - The plaintiffs commenced an action against the defendants respecting the plaintiffs' purchase of a billboard from the corporate defendant - The plaintiffs obtained a default judgment - One of the individual defendants (Andrew) successfully applied to set aside the default judgment, arguing that he was not personally served with the Statement of Claim and that he had a meritorious defence (that he was a mere employee of the corporate defendant and never purported to contract on his own behalf) - The defendants appealed, arguing that Andrew was required to show not only that he was never personally served with the Statement of Claim, but also that he had no knowledge of it and that its contents did not otherwise come to his attention - The Alberta Court of Appeal dismissed the appeal - Andrew was not required to positively depose that he had no knowledge of the claims raised in the Statement of Claim - Evidence was evidence, whether it came through an affidavit or by evidence under oath upon being questioned on that affidavit, or through available inferences arising from either of those sources of evidence - There was evidence before the chambers judge from which he could and did infer that Andrew had no knowledge of the claim made against him - Further, Andrew filed the present application promptly and had identified an arguable defence to the action.

Cases Noticed:

Hansraj v. Ao et al. (2004), 354 A.R. 91; 329 W.A.C. 91; 2004 ABCA 223, refd to. [para. 2].

Reid (Don) Upholstery Ltd. v. Patrie (1995), 173 A.R. 233 (Q.B.), refd to. [para. 4].

Settlement Lenders Inc. et al. v. Blicharz, [2016] A.R. Uned. 15; 2016 ABCA 33, refd to. [para. 4].

Counsel:

P.G. Kirman, for the appellants;

M.M. Kirwin and S.J. Yim, for the respondent.

This appeal was heard on April 4, 2016, before Slatter, McDonald and Bielby, JJ.A., of the Alberta Court of Appeal. Bielby, J.A., delivered the following memorandum of judgment of the court orally from the bench on the same date.