What is the test for setting aside a noting in default?

Alberta, Canada


The following excerpt is from Williams v. S.A.W. Construction Ltd., 1999 ABQB 690 (CanLII):

I don’t believe I am straining the scope of the intention of that element of the Spiller v. Brown decision when I say that it is a logical conclusion from that comment that the major aspect to be examined in a setting aside application is whether there is merit to the defence advanced by the defendant.In other words, the collateral issues of whether there was proper service of the statement of claim and whether the defendant has a good explanation for not filing a defence, and whether the defendant acted with reasonable dispatch when he discovered the significance of the default proceedings, play a relatively minor role once it is established that the defendant has an arguable defence.It would appear from Spiller v. Brown that if a defendant can show that the pleadings do not disclose a cause of action against him it will be determinative of the issue in his favour in an application to set aside the noting in default or default judgment.

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