Warner Construction Co. v. Wood River (Municipality) and Keith Consulting Engineers Ltd., (1979) 1 Sask.R. 118 (CA)

• Judge: Culliton, C.J.S., Woods and Hall, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: October 04, 1979
• Jurisdiction: Saskatchewan
• Citations: (1979), 1 Sask.R. 118 (CA)

Warner Constr. Co. v. Wood River (1979), 1 Sask.R. 118 (CA)

MLB headnote and full text

Warner Construction Co. Ltd. v. Wood River, Municipality of (defendant) and Keith Consulting Engineers Ltd. (third party)

(No. 7172)

Indexed As: Warner Construction Co. v. Wood River (Municipality) and Keith Consulting Engineers Ltd.

Saskatchewan Court of Appeal

Culliton, C.J.S., Woods and Hall, JJ.A.

October 4, 1979.

Summary:

This case arose out of an action by a builder against a municipality for damages for misrepresentation. The municipality served a third party notice on a firm of engineers. The engineers did not appear and defend. After a trial the municipality was held liable but the court allowed the municipality's claim for indemnity against the engineers. The engineers then applied to set aside the judgment against it. The Saskatchewan Court of Queen's Bench set aside the judgment against the firm of engineers. The municipality appealed to the Saskatchewan Court of Appeal.

The Saskatchewan Court of Appeal allowed the appeal, set aside the judgment of the Saskatchewan Court of Queen's Bench and held that the judgment against the engineers should not be set aside in the circumstances. The Court of Appeal stated that the municipality was prejudiced by the failure of the engineers to defend the third party claim. Also the Court of Appeal stated that the engineers did not offer a valid excuse for failing to defend the third party claim.

Practice - Topic 6200

Judgments - Setting aside default judgments - A builder sued a municipality for damages for misrepresentation - The municipality served a third party notice on a firm of engineers - The engineers did not appear and defend - After a trial the municipality was held liable but the court allowed the municipality's claim for indemnity against the engineers - The firm of engineers then applied to set aside the judgment against it - The Saskatchewan Court of Appeal held that the default judgment against the engineers should not be set aside because the municipality was prejudiced by the failure of the engineers to defend the third party claim and because the engineers did not offer a valid excuse for failing to defend the third party claim.

Practice - Topic 6196

Judgments - Setting aside default judgments - The Saskatchewan Court of Appeal referred to the general principles governing an application to set aside a default judgment - See paragraph 2.

Cases Noticed:

Klein v. Schile, [1921] 2 W.W.R. 78, refd to. [para. 2].

Hamel v. Chelle (1964), 48 W.W.R. 117, refd to. [para. 2].

Smigarowski v. Mugliston (1951), 2 W.W.R.(N.S.) 108, refd to. [para. 16].

Rabinovitch v. Feist, [1927] 2 W.W.R. 673, refd to. [para. 16].

Statutes Noticed:

Rules of Court (Sask.), rule 346 [para. 1].

Counsel:

G.J.K. Neill and W.D. Baldwin, for the appellant Wood River;

P.N. McDonald, for the respondent Keith Consulting Engineers Ltd.

This appeal was heard by CULLITON, C.J.S., WOODS and HALL, JJ.A., of the Saskatchewan Court of Appeal.

The judgment of the Saskatchewan Court of Appeal was delivered by CULLITON, C.J.S., at Regina, Saskatchewan, on October 4, 1979.