Prince Albert Real Estate Ltd. v. BMGN Enterprises Ltd. et al., (2007) 296 Sask.R. 102 (QB)

• Judge: M-E. Wright, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: April 16, 2007
• Jurisdiction: Saskatchewan
• Citations: (2007), 296 Sask.R. 102 (QB);2007 SKQB 131

Prince Albert Real Estate v. BMGN Ent. (2007), 296 Sask.R. 102 (QB)

MLB headnote and full text

Temp. Cite: [2007] Sask.R. TBEd. MY.014

Prince Albert Real Estate Limited (plaintiff) v. BMGN Enterprises Ltd. carrying on business under the names Century 21 Solid Gold and Century 21 Solid Gold Realty (defendant) and Mike Geravelis and Sherry Olson (third parties)

(2005 Q.B. No. 436; 2007 SKQB 131)

Indexed As: Prince Albert Real Estate Ltd. v. BMGN Enterprises Ltd. et al.

Saskatchewan Court of Queen's Bench

Judicial Centre of Prince Albert

M-E. Wright, J.

April 16, 2007.

Summary:

The plaintiff sued the defendant, seeking the plaintiff's share of commissions earned ($5,899.50) when it sold a residential property listed for sale by the defendant. The defendant sued the third parties, the vendors, seeking the full amount of the commission ($11,799). Notwithstanding having accepted an offer to purchase presented to them, the third parties had refused to complete the transaction. The defendant obtained a default judgment against the third parties. The third parties applied to set aside the default judgment.

The Saskatchewan Court of Queen's Bench dismissed the application.

Practice - Topic 6201

Judgments and orders - Setting aside default judgments (incl. noting in default) - Requirement of reasonable excuse for default - The plaintiff sued the defendant, seeking the plaintiff's share of commissions earned ($5,899.50) when it sold a residential property listed for sale by the defendant - The defendant sued the third parties, the vendors, seeking the full amount of the commission ($11,799) - Notwithstanding having accepted an offer to purchase presented to them, the third parties had refused to complete the transaction - The defendant obtained a default judgment against the third parties - The third parties applied to set aside the default judgment, asserting that they were not personally served with the statement of claim - The Saskatchewan Court of Queen's Bench dismissed the application - The third parties knew of the claim being asserted against them - They were made aware of the possibility of the claim by their agent, and to the fact of the claim by the process server - They had formal notice of the claim by virtue of service upon them of the Notice of Third Party Claim in accordance with the order for substituted service - The situation in which they now found themselves had been occasioned only by their willful actions and inactions in attempting to avoid, deflect and ignore the fact that due process was being taken against them - These were not circumstances in which the court should exercise its discretion to set aside a judgment regularly obtained - See paragraphs 20 and 21.

Cases Noticed:

Klein v. Schile, [1921] 2 W.W.R. 78 (Sask. C.A.), refd to. [para. 12].

Hamel v. Chelle (1964), 48 W.W.R.(N.S.) 117 (Sask. C.A.), refd to. [para. 13].

Warner Construction Co. v. Wood River (Municipality) and Keith Consulting Engineers Ltd. (1979), 1 Sask.R. 118; 105 D.L.R.(3d) 370 (C.A.), refd to. [para. 13].

First City Capital Ltd. v. Abramson Enterprises Ltd. and Abramson (1988), 68 Sask.R. 281 (C.A.), refd to. [para. 13].

Matheson Estate v. Stefankiw et al. (2000), 191 Sask.R. 241; 2000 SKQB 127, refd to. [para. 18].

Van De Geer Estate v. Penner et al. (2004), 252 Sask.R. 213; 2004 SKQB 253, refd to. [para. 18].

Sawatzky and Sawatzky v. Sawatzky (1986), 48 Sask.R. 161 (Q.B.), refd to. [para. 18].

Burlington Carpet Sales Canada Ltd. v. Weyburn Carpet, Glass & Supplies Ltd. (1982), 20 Sask.R. 280 (Q.B.), refd to. [para. 21].

Greystone Business Consultants Ltd. v. McIvor, [1983] S.J. No. 101 (Q.B.), refd to. [para. 21].

Andrew Paving and Engineering Ltd. v. Folino (1995), 37 C.P.C.(3d) 99 (Ont. Gen. Div.), refd to. [para. 21].

Martosh v. Horton (2005), 143 A.C.W.S.(3d) 985 (Ont. Sup. Ct.), refd to. [para. 21].

Banks v. Sopko, [1940] 1 D.L.R. 409; [1940] 1 W.W.R. 45 (Sask. C.A.), refd to. [para. 21].

Authors and Works Noticed:

Chitty on Contracts (29th Ed. 2004), p. 579 [para. 18].

Counsel:

No one appeared for the plaintiff;

L.W. Zuk and R.R. Lavoie (student-at-law), for the defendant, Century 21;

M. Bauer (student-at-law), for the third parties.

This application was heard by M-E. Wright, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Prince Albert, who delivered the following fiat on April 16, 2007.