What is the test for a moving party to set aside a default judgment?

British Columbia, Canada


The following excerpt is from Bagher et al v. Starlite Marina Ltd. et al, 2016 BCPC 9 (CanLII):

The defendants, in their closing submissions, state that this rule is a codification of the test set out in the well‑known Miracle Feeds v. D. & H. Enterprises Ltd. case, [1979] B.C.J. No. 1965, a decision of Mr. Justice Hinds, where the test for the moving party to meet is set out in paragraph 5 as follows: 1. That he did not wilfully or deliberately fail to enter an appearance or file a defence to the plaintiff's claim; 2. That he made application to set aside the default judgment as soon as reasonably possible after obtaining knowledge of the default judgment, or give an explanation for any delay in the application being brought; 3. That he has a meritorious defence or at least a defence worthy of investigation; and 4. That the foregoing requirements will be established to the satisfaction of the court through affidavit material filed by or on behalf of the defendant.

This list of factors is not an exhaustive one, as the defendants point out in paragraph 20 of their helpful written submission. Reference is made to the decision of Rogers J. in the McEvoy v. McEachnie decision, [2008] B.C.J. No. 1787, where he said this in part in paragraphs 13 to 15 of his reasons:

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