CIVIL PROCEDURE — Abuse of Process — Where prior application for the same relief dismissed — Whether present application is an abuse of process
CIVIL PROCEDURE — Irregularity — Where defendant alleges statement of claim not served — Where irregularity established — Where Court satisfied defendant was on notice of proceedings prior to entry of default judgment — Application of UCPR r 14(3) and CPA s 63(3) — Order that statement of claim be taken to have been served on the defendant
CIVIL PROCEDURE — Default judgment — Application to set aside — Consideration of discretionary factors — Application refused
Quick Take
1Where service of originating process does not comply with UCPR r 10.26 (service on a person who 'keeps house'), the resulting default judgment is irregular within the meaning of CPA s 63, but that irregularity does not of itself invalidate the judgment; the court retains discretion under s 63(3)(b) to make orders dealing with the proceedings, including retrospectively validating service under UCPR r 10.14(3).
2An order under UCPR r 10.14(3) deeming a document to have been served may be made where the court is satisfied on the balance of probabilities that steps already taken brought the document to the defendant's notice, even though those steps did not conform to the prescribed mode of service — adverse credit findings against the defendant as to awareness of the proceedings may be decisive on that question.
3A prior interlocutory application dismissed for non-appearance does not automatically render a fresh application for the same relief an abuse of process where there was no prior determination on the merits, though the defendant's conduct and the circumstances of the earlier dismissal are relevant discretionary considerations.
