Dieter M. Burger First Plaintiff And: Judith M. Burger Second Plaintiff And: Avalon Squires Jr. General Contracting Defendant, 2020 NLSC 62

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Burger v. Avalon Squires Jr. General Contracting , 2020 NLSC 62 Date : May 4, 2020 Docket : 201501G4682 Between: Dieter M. Burger First Plaintiff And: Judith M. Burger Second Plaintiff And: Avalon Squires Jr. General Contracting Defendant Before: Justice Garrett A. Handrigan Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: March 18, 2020

Summary: Dieter and Judith Burger sued Avalon Squires over differences that developed on a contract that Mr. Squires had with the Burgers to build a house for them. The Burgers served Mr. Squires with the Statement of Claim and obtained a default judgment, with damages to be assessed, over three and one half years after they served the Statement of Claim on him. Mr. Squires applied to set aside the default judgment.

The Court allowed the Application after Mr. Squires proved on a balance of probabilities that he should be allowed to defend the claim. In a document Mr. Squires presented to the Court he showed that he had a potentially good defence on the merits to the claim. Furthermore, it was not unfair to set aside the default judgment after considering the timeliness of the Application to set it aside, theexplanation for not filing a defence within time, the prejudice to the Plaintiffs and the need to bring finality to disputes. The Courtordered costs in the cause. Appearances: Judy M.

Manning Appearing on behalf of the Plaintiffs Avalon Squires Appearing on behalf of himself Authorities Cited: CASES CONSIDERED: Langor v. Spurrell (1997), (NL CA), 157 Nfld. & P.E.I.R. 301, 486 A.P.R. 301 (Nfld.C.A.) RULES CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch. D REASONS FOR JUDGMENT Handrigan, J.: INTRODUCTION [1] In May 2012, Dieter Burger and Judith Burger (“The Burgers”) hired Avalon Squires Jr. General Contracting (“AvalonSquires”) to build a house for them at 102 Tuckers Hill Road, in the Town of Portugal Cove-St. Philips, Newfoundland and Labrador. Mr.

Squires presents himself as a “General Contractor” in house construction, repairs and maintenance and related work. Mr. Squiresbegan work on the house in late summer 2012 and continued into 2013. Differences developed between the Burgers and Mr. Squiresover the timeliness of Mr. Squires’ work on the house, the cost of the project, variations in the design and related matters. Theirdifferences intensified over a couple of years and came to a head on September 3, 2015 when the Burgers filed a Statement of Claim inthis Court against Mr. Squires. [2] The Burgers claim that some of Mr.

Squires’ work on their house was deficient; they say that they paid for sub-contractedservices through Mr. Squires for which he was to account to them but he did not; they say that Mr. Squires used materials that he boughtfor their house on other construction projects without giving them credit for the purchases; and they have a catalogue of other complaintsabout his work. [3] The Burgers served their Statement of Claim on Mr. Squires on October 22, 2015, when a process server gave it to Mr.Squires personally, at his home at 820B St. Thomas Line, in the Town of Portugal Cove-St. Philips. Mr.

Squires did not file a defence tothe Statement of Claim within 10 days of receiving it as required by Rule 10.02(1) of the Rules of the Supreme Court, 1986, S.N.L. 1986,c. 42, Sch. D (“Rules of Court”). In fact, Mr. Squires never filed a defence to the claim. On January 28, 2019 the Burgers obtainedjudgment against Mr.

Squires, in default of a defence, “For unliquidated damages: the defendant pay to the plaintiff damages to beassessed.”: Default Order, dated and filed on January 28, 2019. [4] Meanwhile, on February 21, 2019, the Burgers applied to this Court by Interlocutory Application to assess the damages theywould receive from Mr. Squires on their claim. A process server served the Interlocutory Application on Mr. Squires on March 13, 2019by leaving it with his brother. The process server says in his Affidavit of Service that he made five unsuccessful attempts betweenMarch 4 and March 8, 2019 to serve Mr.

Squires, before he served his brother; and the process server also says in his Affidavit ofService that he believed Mr. Squires was avoiding him. [5] On May 31, 2019, almost 4 months after Mr. Squires received the Burgers’ Interlocutory Application to assess damages, Mr.Squires filed an Interlocutory Application in this Court asking to have the Default Order the Burgers filed on January 28, 2019 set aside. I heard Mr. Squires’ Application to set aside on March 18, 2020 and reserved my ruling until now.

ISSUE Should I set aside the default judgment and allow Mr. Squires to file a defence to the Statement of Claim?

The Law Statute – Rules of Court [6] The following Rules of Court pertain to this matter: Rule 10.02(1) When a defendant is served with a statement of claim…the defendant shall, within ten days after service thereof on thedefendant…file a defence and copy with the Court. … Rule 16.01(1) Where an originating document contains any of the claims mentioned in rule 16.01 (2) [including a claim for unliquidateddamages] and a defendant fails to file a defence thereto within ten days of the service of the document…the plaintiff may enter judgmentagainst the defendant…. … Rule 16.01(2) The judgment may be entered for costs, and… (

b) where a claim is for unliquidated damages, for damages to be assessed. … Rule 16.06 The Court may, on such terms as it thinks just, set aside or vary any judgment entered by default in pursuance of Rule 16. Case Law [7] Green, J.A. (as he then was) set out in Langor v. Spurrell (1997), (NL CA), 157 Nfld. & P.E.I.R. 301, 486A.P.R. 301 (Nfld. C.A.), in his inimitable style, the law that applies to applications to set aside default judgments. In Langor theplaintiff, Christopher Langor was injured when a vehicle driven by Lester Spurrell and owned by Obediah Spurrell left the road.

Mr.Langor sued the Spurrells’ and served his statement of claim on them. [8] The Spurrells’ solicitor did not file a defence and Mr. Langor obtained judgment by default under Rule 16.01(2), with damagesto be assessed. It appears that the Spurrells’ solicitor presented a defence to the Court on their behalf, the day after Mr. Langor enteredthe default judgment, evidently unaware that Mr. Langor had obtained default judgment. Court staff also missed the default judgmentand accepted the defence notwithstanding judgment had been granted.

The Spurrells’ solicitor first learned of the default judgment eightmonths later, when Mr. Langor applied to have damages assessed. [9] Mr. Langor would not consent to setting aside the default judgment, so the defendants applied to set it aside. The applicationsjudge set aside the default judgment and Mr.

Langor appealed the ruling to the Court of Appeal; which dismissed his appeal. [10] In Langor, at paragraph 44, Green, J.A. restated the principles that apply to Rule 16.06 applications, noting it to be the “trueprinciple” and a “precondition to setting aside a default judgment that the applicant demonstrate a potentially good defence on themerits”.

He elaborated on the defendant’s obligation by noting that he “…has to demonstrate to the court that the re-opening of the casewill not be a waste of time and that there is a real issue in controversy which requires adjudication on the facts or the law, i.e. it is notsimply the wishful thinking of the pleader but that the position has some basis in the reality of the available evidence”. [11] If the defendant shows a “potentially good defence”, the default judgment should be set aside, unless it would not be “fair” to doso considering four factors: 1. The “timeliness of the application” to set aside; 2.

The “explanation for not filing a defence within time”; 3. The “prejudice to the plaintiff”; and 4. The need to bring “finality to disputes”. (Langor, paragraph 44) [12] Green, J.A. also considered the “evidentiary basis” for Rule 16.06 applications. Subject to a limited right to cross-examinedeponents, the evidence on the application should be provided by affidavits which: • set out the merits of the proposed defence and show that it has some potential basis in real evidence;

• are accompanied by a draft of the intended defence; • may be dispensed with in those “rare but appropriate cases” where facts already pleaded by the plaintiff support the proposed defence; • are not, as a general rule, from the defendant’s solicitor personally; • if deposed to as “true to the best of one’s knowledge and belief”, must disclose the basis of the belief; and (similarly) • if based on hearsay, must state the sources and grounds for the hearsay. ( Langor , paragraphs 46-57 ) [ 13 ] Green, J.A. said that if the defendant shows he has a potentially good defence prima facie he should be entitled to have the default judgment set aside, but only after considering the four factors that I listed above.

Overall, he noted that “[i]n exercising its discretion once an arguable case has been established, the court must be alert to the potential use of costs and other terms as a means of ameliorating prejudice to the other side so as to facilitate, if at all possible, the resolution of the case on its merits”: Langor , paragraph 46 . [ 14 ] This is the law I will apply to the issue I stated above. I turn now to analyze that issue, starting with the background to it. analysis Background [ 15 ] The Burgers lived in Tiverton, ON formerly but decided around 2012 that they would retire to this Province.

So, they went looking for a contractor to build a retirement home for them. Eventually, they made contact with Mr. Squires and hired him to build it. Mr. Squires began work in summer 2012 and construction continued into 2013. The working relationship between the Burgers and Mr. Squires, as I noted earlier, deteriorated as the project progressed. [ 16 ] In the Statement of Claim they filed with the Court on September 3, 2015, the Burgers complained about many problems with Mr.

Squires’ work and more problems with his accountability, including: • Windows not installed as per Blue Print Instructions; • Did not receive receipts from sub-contractors hired by Avalon Squires; • No receipts for windows order[ed] by Avalon Squires from Boncor Building Products, 10 Dundee Avenue, Mt. Pearl; • Over thirty-five thousand dollars of material and house items order[ed] on our Kent account by Avalon Squires Jr.

But not used in construction of new home or to be found anywhere at construction site; and • Construction started late summer of 2012; last spoke to Avalon Squires Jr. in October of 2013. [ 17 ] The Burgers filed an Affidavit of Service on October 23, 2015 from process server, William Earle. Mr. Earle swore that he delivered the Statement of Claim to Mr. Squires personally at his home on October 22, 2015; and Mr. Earle also noted that Mr. Squires signed Mr. Earle’s Affidavit of Service on the same date. I examined Mr. Earle’s Affidavit of Service and Mr. Squires’ signature appears to be in paragraph 2.

On January 28, 2019, the Burgers filed a default judgment, “For unliquidated damages, the defendant pay to the plaintiff damages to be assessed.” [ 18 ] The Burgers filed an Interlocutory Application on February 21, 2019 asking for their damages to be assessed. In their Application they say, amongst other things: • We hired Mr. Squires on good faith to build us a new house located at 102 Tuckers Hill Road, St. Philips. Mr.

Squires was given signing permission on my Kent account to order necessary materials, plus he was given money for items needed to build house; • [T]he respondent refused to give us any receipts for money paid to him;

• Respondent has not filed a defence to our claim; • Seeks monies owed and approximately $100,000 .00 or so Plus material from Kent account and Home depot account Plus court costs. Plus costs of completion of work Mr. Squires was paid to do – But he did not complete; • $350,000 .00 paid to Mr. Squires with no explanation of how money was spent; • [A]lso materials ordered on my account but not used in our house construction; • My husband [Dieter Burger] and I [Judith Burger] are fixing mistakes made on inside of house; and • Mr. Squires was paid in full up to and including drywall. [ 19 ] Mr.

Earle served the Burgers’ Interlocutory Application on Mr. Squires on March 13, 2019 by leaving it with Mr. Squires’ brother, Peter Squires, who accepted it on his behalf. Mr. Earle noted in the Affidavit of Service that he tried unsuccessfully five times between March 4 and March 8, 2019 to serve Mr. Squires with the Application, by attending on him at his home. Mr. Earle thought that Mr. Squires “… was there but would not come out to accept service of the Interlocutory Application …”: Mr. Earle’s Affidavit of Service, dated March 13, 2019. [ 20 ] I am unsure of the date, but it appears that Mr.

Squires intended to file a defence to the Statement of Claim, sometime in April 2019. There are two documents in the file. The first document is an unsigned Form 10.01A (defence form) attached to the Rules of Court , that bears Court File No. 201501G4682 and it shows the Burgers as Plaintiffs and Mr. Squires as Defendant; but there are no other writings on the form. Affixed to the form is a yellow “sticky note”, to this effect: April 24, 2019 – Defence is not signed nor completed. If application for default is granted, Mr.

Squires will be required to properly execute documentation before defence can be filed. (Left in file by order April 24) Emphasis in original [ 21 ] The second is a 9-page, single-spaced, typed document that bears this heading on page 1: Background and building history regarding the Judy and Dieter Burger house project 102 Tuckers Hill Rd, Portugal Cove-St. Philips by Avalon Squires April 8, 2019. [ 22 ] I read the document carefully and its contents are true to its heading. It recites Mr.

Squires’ involvement with the Burgers and the challenges he says he had in building their house, and it addresses some of the complaints the Burgers made about Mr. Squires that I set out earlier in these reasons. The documents are stapled together as one and appear to be Mr. Squires’ intended “defence” to the Statement of Claim. [ 23 ] On May 31, 2019, Mr. Squires filed an Interlocutory Application “asking to have default order set aside”. He used a preprinted Form 29.02A that he probably obtained from the forms attached to the Rules of Court . Mr.

Squires supports his Application with the following comments: Under “Nature of Application”, he says: • I am applying to have a default order set aside because I was unsure of any such order being put in place. • I wasn’t made aware of any court date in the past scheduled. There has not been and discussion of this matter just accusations no persons questioned. • In the eyes of the Law I have a legal right to defend myself. I’ve never been asked anything related to this mater. Under “Procedural History”, he says:

• The Burgers are accusing me of fraud and all moneys paid weren’t paid to me Avalon Squires and I am unaware of the amount in question. • To my knowledge all persons involved in the project were paid by cash because the Burgers were reluctant to pay HST. • To this date, other than years gone by the RNC has questioned me and found no wrongdoing. So with this I feel I am entitled to talk to my accusers. Under “Material Facts”, he says: • The facts are not everything was paid for or arranged for by myself. I would like to know where the money is paid to that I’m being accused of.

Under “Other Pertinent Information and References”, he says: • I would like for the Burgers to get me proof of their accusations. Finally, under “Relief Sought”, he says: • The relief sought is to have this matter dismissed. [ 24 ] Mr. Squires represents himself in this matter, as did the Burgers until September 5, 2019, when the Burgers appointed Counsel to continue the proceedings on their behalf. On January 15, 2020, the Burgers filed an Affidavit in response to Mr. Squires’ Application to set aside the default judgment. [ 25 ] This is the background to the issue I stated earlier.

I turn now to discuss the issue, against this background. Discussion [ 26 ] In Langor , Green, J.A. set out the “evidentiary basis” that an applicant applying to set aside a default judgment should provide to support his application. I listed the requirements earlier in these reasons and need not repeat them here. Essentially, the applicant must file an affidavit setting out his defence, refer to the evidence he proposes to rely on and attach a draft of his intended defence to the application.

The applicant must sign the affidavit himself and support any “beliefs” he says he has with the facts he relies on for his beliefs. [ 27 ] Based on this evidence, the applicant must show, again relying on Green, J.A.’s judgment in Langor , that he has a “potentially good defence on the merits” and that it would not be “unfair” to set aside the default judgment after considering the timeliness of the application to set aside, the explanation for not filing a defence within time, the prejudice to the plaintiffs and the need to bring finality to disputes. [ 28 ] Let me consider each aspect of these factors in turn.

A Potentially Good Defence on the Merits [ 29 ] I noted earlier that Mr. Squires presented a 9-page document to the Court, attached to the unsigned Form 10.01A that bears the Court File No. for this matter, in which he names the Burgers as Plaintiffs and Mr. Squires as Defendant. The document is a detailed history of his involvement in the house construction project, in which he challenges many of the assertions that the Burgers make in the documents they filed and sets out other considerations that are relevant to the issues between them.

On its face, the document is a useful counterpoint to the Statement of Claim, and it requires consideration. [ 30 ] For their part and after they appointed Counsel, the Burgers filed a 32-paragraph Affidavit, addressing many of the matters Mr. Squires set out in this document. Based on the 9-page document Mr. Squires presented to the Court in April 2019 and the Affidavit the Burgers filed opposing his Application to set aside the default judgment, I find that Mr.

Squires has shown he has a potentially good defence on its merits, to the Statement of Claim. [ 31 ] Let me note, for example, some of the unforeseen things that Mr. Squires claims the Burgers did after they hired him to build the house and other unexpected problems he encountered. I want to be clear that I make no findings as to the merits of any of Mr.

Squires’ claims, other than to say they form the potential basis of a defence: • He understood the Burgers were building their house on a level lot, but they chose a site that had a 40-degree slope, which required extensive excavation, backfilling, infilling, and ditching and also required design changes in the house;

• Excavating the land created serious flooding problems that he had to address; • The Burgers asked him to obtain a building permit from the town, leading to a lengthy delay in the project as he navigated bureaucratic “red tape” and arranged for the multiple site surveys the town required; • There was no road to the building site, so he had to get one built; • The Burgers added a double garage to the plans, which required more survey work, a secondary approval from the town and more excavation; • Then the Burgers moved the garage from the main floor to the basement; • The Burgers asked for an additional 2” of rigid foam insulation to be installed over the exterior of the house, increasing material and labour costs and time on task; • The Burgers added electrified gate posts for the driveway, requiring excavating, building forms, installing electrical conduit and pouring footings; and • The Burgers changed interior walls and some parts of the electrical service from what the original plans required.

Otherwise: • Mr. Squires denied purchasing materials on their accounts and using the materials elsewhere than on their home; • He says he encountered serious problems with Boyd Hiscock, Ms. Burger’s brother who showed up for work, “off and on” and harassed him so ruthlessly that Mr. Squires had to report him to the police; • He says the roof design the Burgers chose for their house was unorthodox, it was unnecessarily complex, and overall it was frustrating and awkward to work with; and • He says that Mr.

Burger moved walls within the house, adding to the challenges he already had working with the roof. [ 32 ] Generally, Mr. Squires says that the Burgers “…were in full control of the project. It was their decision to oversee the project from Ontario. During the 10-month construction period, they only came down to visit the site once, and they were quite happy with what they saw”. [ 33 ] In Langor , Green, J.A. says that when a defendant offers a potentially good defence prima facie he should be entitled to have the default judgment set aside, but only after considering the four factors that I listed above.

Let me review them in this matter. Timeliness of the Application to Set Aside [ 34 ] Mr. Squires filed his Application to set aside the default judgment on May 31, 2019, four months after the judgment was entered on January 28, 2019. The Burgers note the lapse of time and say that Mr. Squires was woefully delinquent in his overall response to the claim they brought against him.

They say his neglect of the proceedings should be counted against him in this Application. [ 35 ] Timing matters in applications to set aside default judgments, so before proceeding further, let me set out in a table the history of the claim since the Burgers learned in May 2013 that Mr. Squires was no longer working on their house: Date Event May 2013 The Burgers visit the property and find that Mr. Squires is not working on it. September 3, 2015 The Burgers issue Statement of Claim. October 22, 2015 Mr. Earle serves the Statement of Claim on Mr. Squires.

October 23, 2015 The Burgers file their Affidavit of Service for the Statement of Claim. January 28, 2019 The Burgers file their default judgment, with damages to be assessed. February 21, 2019 The Burgers file their Interlocutory Application to assess damages. March 13, 2019 Mr. Earle serves the Interlocutory Application to assess damages on Mr. Squires. March 13, 2019 The Burgers file their Affidavit of Service for the Interlocutory Application. March 26, 2019 Interlocutory Application is called in Court and set over to April 23, 2019, for status.

April 23, 2019 Interlocutory Application is called in Court and set over to June 4, 2019, for status. April 24, 2019 Mr. Squires presents a document, qua defence, to the Court but it is not filed. May 31, 2019 Mr. Squires files an Interlocutory Application to set aside the default judgment. June 4, 2019 Mr. Squires’ Application is called in Court and set for hearing on January 17, 2020. September 5, 2019 The Burgers file a Notice appointing a solicitor to represent them. January 15, 2020 The Burgers file a Memorandum of Fact and Law.

January 17, 2020 The Application cannot proceed because of inclement weather and is rescheduled. March 18, 2020 Application to set aside default judgment is heard and decision reserved. [ 36 ] It is apparent from the table that neither the Burgers nor Mr. Squires was particularly vigilant in attending to their dispute in the five and one half years between May 2013 when the Burgers discovered Mr. Squires was no longer working on the project and when the Burgers obtained their default judgment in January 2019. The Burgers waited two and one half years before they sued Mr.

Squires and then they waited another three years or more before they filed for default judgment. [ 37 ] Since the Burgers obtained the default judgment, it is just as apparent from the table that there has been considerable activity on the file; including three appearances in this Court as they tried to set a date for hearing Mr. Squires’ Application to set aside, and each has filed several documents as they prepared for the hearing. [ 38 ] I cannot find that Mr. Squires has been as delinquent in responding to the claim as the Burgers say.

I accept that he did not file a defence within 10 days of being served with the Statement of Claim as the Rules of Court require but the Burgers waited two and one half years before they sued him and then waited more than three years before they did anything about his failure to file a defence. Explanation for not Filing a Defence Within Time [ 39 ] Mr. Squires is unclear about his failure to file a defence. He says when he received the Statement of Claim he had retained a solicitor to deal with other matters and he left the Statement of Claim with him to take care of it. Mr.

Squires says he heard nothing more about the Burgers’ claim until he received the default judgment. He says he contacted his solicitor then, but Counsel advised that he was too busy to work on it for Mr. Squires. Since then Mr. Squires has been dealing with the matter himself. Prejudice to the Plaintiffs [ 40 ] The Burgers claim that they will be prejudiced if I set aside the default judgment.

In particular, they say that this is “…to some degree, a “memory case” in that the Plaintiffs [the Burgers] would be, in part, relying on the memories of certain individuals, including, but not limited to, subcontractors retained by the Defendant [Mr. Squires], in proving their case …”.

They also say they “… have been prejudiced by the significant period that has elapsed since the service of the Statement of Claim on or about October 22, 2015”: Plaintiffs’ Memorandum of Fact and Law, filed January 15, 2020, paragraph 41. [ 41 ] I agree with the Burgers that this is a “memory case” and that a lot of time has passed between when they found out in May 2013 that Mr. Squires was no longer working on their home and now; but I do not agree that Mr. Squires should be held to account for all the lost time.

In fact, it is apparent from the table I set out above that the Burgers did little for five and one half years after their claim against Mr. Squires crystallized. Eventually they moved to enforce the default judgment in 2019 but they had waited two and one half years after Mr. Squires was off site of their house before they sued him; and then they sat on the claim for three more years before they obtained default judgment. [ 42 ] Several things come to mind in response to their claim that they will be prejudiced by lapsing memories because of the time that has passed.

First, elapsed time and lapsing memories will affect Mr. Squires’ ability to defend himself just as much as it will affect their Burgers’ ability to prosecute their claim. Furthermore, the Burgers obtained default judgment against Mr. Squires, with damages to be assessed. The lapsing and failing memories of witnesses will pose as much of a challenge to the Burgers in proving their damages as it would in proving liability. [ 43 ] Finally, I note that the Burgers issued another Statement of Claim from this Court on November 1, 2019 for matters arising from the construction of their house.

Court File No. 201901G7053 is a claim by Dieter and Judith Burger as First and Second Plaintiffs against Thomas Squires and Avalon Squires as First and Second Defendants. The Burgers allege in paragraph 3 of their Statement of Claim that Thomas Squires is Avalon Squires’ son. [ 44 ] The Burgers claim further that Avalon Squires diverted materials intended for their home to his son’s home at Lot 38 Whalen’s Pond Road, Whalen’s Pond, Newfoundland and Labrador and that he misled them about where materials obtained on their accounts from building supply stores were used.

The Burgers ask for general and special damages, interest and costs against Mr. Squires and his son in

this claim. [ 45 ] Counsel for the Burgers served Avalon Squires personally with this Statement of Claim in the courtroom on March 18, 2020 after I heard Mr. Squires’ Application to set aside the default judgment, but before I adjourned the hearing. I note this entry from the minutes for that day at 10:21:50 am – Ms. Manning [Counsel for the Burgers]: “I would like to serve Mr. Squires with Statement of Claim this morning with respect to other issues re hot tub etc.” I confirmed with Counsel that the new claim also arises from the construction of the Burgers’ house and I cautioned Mr.

Squires about being vigilant in filing a defence to it. [ 46 ] I have since reviewed the new Statement of Claim from the copy of it that was in the court registry and it clearly relates to the construction of the Burgers’ house at 102 Tucker’s Hill Road, Portugal Cove-St. Philips. The primary focus of the second claim is the diversion of materials and equipment from their house to Thomas Squires’ house, but the claim is bound up with the obligations that Avalon Squires had to the Burgers in building their house. [ 47 ] I refer to the new Statement of Claim for two reasons.

The Burgers will encounter the same problems in prosecuting that claim as they say they will have if I set aside the default judgment in the first matter, prejudice notwithstanding. Otherwise, the new initiative the Burgers have undertaken is relevant to the last point they make about why I should not set aside the default judgment in their first claim against Mr. Squires, to which I turn now.

Need to Bring Finality to Disputes [ 48 ] The Burgers submit that “… the issuance of the Default Order marked an end to its dispute vis-à-vis the Defendant [Avalon Squires], but for an assessment of damages, and [they] reasonably relied on the finality of the Order for more than four months, until the Defendant/Applicant decided to challenge same. …”: Plaintiffs’ Memorandum of Fact and Law, filed January 15, 2020, paragraph 42. [ 49 ] In response, I note two things: First, if I leave the default judgment in place, the burden on the Burgers in proving their damages may be only slightly less onerous than proving both liability and damages together.

I expect that the finality of the default judgment may seem a little hollow by the time they prove their damages on that claim. [ 50 ] Of course, the other issue that the Burgers face in arguing the need for finality arises from the new proceedings they have brought against Mr. Squires and his son.

They will re-litigate many of the issues they would have faced in the first action in prosecuting the new claim, so it appears that they have forsaken the principle of finality in seeking this new and additional relief. [ 51 ] Overall, I am satisfied that Avalon Squires has shown on a balance of probabilities that the default judgment the Burgers filed in their claim against him on January 28, 2019 should be set aside so he can file a defence to it. I allow Avalon Squires 21 days from the date the final order in this matter is filed in Court to file his defence to the claim. Costs [ 52 ] Costs are in the cause.

Summary and Disposition [ 53 ] Dieter and Judith Burger sued Avalon Squires over differences that developed on a contract that Mr. Squires had with the Burgers to build a house for them. The Burgers served Mr. Squires with the Statement of Claim and obtained a default judgment, with damages to be assessed, over three and one half years after they served the Statement of Claim on him. Mr. Squires applied to set aside the default judgment. [ 54 ] The Court allowed the Application after Mr. Squires proved on a balance of probabilities that he should be allowed to defend the claim. In a document Mr.

Squires presented to the Court he showed that he had a potentially good defence on the merits to the claim. Furthermore, it was not unfair to set aside the default judgment after considering the timeliness of the Application to set it aside, the explanation for not filing a defence within time, the prejudice to the Plaintiffs and the need to bring finality to disputes. The Court ordered costs in the cause.

Order [ 55 ] In the result, I order: • The default judgment entered in this matter on January 28, 2019 is set aside. • Avalon Squires has 21 days from when the final order on this Interlocutory Application is filed in Court to file his defence to the claim. • Costs in the cause. _____________________________ Garrett A. Handrigan Justice