Executive Summary: Key Legal and Evidentiary Issues

• Defendants challenged the validity of personal service of originating pleadings, claiming the individual defendant was in the Philippines at the time of purported service

• A response to civil claim was filed without authorization from the defendants, bearing a dissimilar signature and referencing a Vietnamese address unknown to the defendant

• The Robertson Order for substituted service was obtained based on the false premise that defendants had filed a response to civil claim after being substitutionally served

• Passport evidence proved conclusive that the individual defendant was not personally served on the date alleged by the process server

• Under Ming Sun, judgments obtained without proper service must be treated as nullities and set aside

• The corporate defendant DDI was dissolved shortly after service of the originating pleading, triggering special service requirements under the Business Corporations Act

Background and parties involved

The plaintiff Xingshun Wen and defendant Duke Tong had business dealings with each other involving cryptocurrency, starting in about 2017. Tong is the owner of the corporate defendant, Duke Dynamics Inc. (DDI). On February 13, 2024, Wen filed a notice of civil claim seeking an order requiring the repayment of a debt allegedly owed by the defendants in the amount of approximately $65,000. Land title records showed Tong to be the owner of a property at 2523 East 4th Avenue in Vancouver (the "Property"), with those records listing the Property's address as Tong's mailing address. Corporate records further showed that the Property is the registered and records office of DDI.

The service dispute

A process server deposed that on February 20, 2024, he served a person with the notice of civil claim at the Property. He attached to the affidavit of service a blurry photo and deposed that this photo was a "true likeness of the person I was asked to serve." Notably, the process server did not say that the photo was a true likeness of the person that he actually served. Tong proffered copies of his passport which showed that he was in the Philippines on the date on which he was purportedly served. The Court found that evidence conclusive of the issue.

The unauthorized response to civil claim

In August 2024, the process server attempted five times to serve the defendants with the amended notice of civil claim but could not locate Tong or reach him at the Property. Relying on these service attempts, the plaintiff obtained an order for substituted service dated December 9, 2024, permitting him to serve the amended notice of civil claim by leaving a copy in the mailbox of the Property. Service was affected pursuant to this order on December 27, 2024. On or about January 27, 2025, a response to civil claim was filed. The defendants denied filing this response and noted that the signature on this document does not resemble Tong's signature on other documents. The response referred to an address in Vietnam which Tong deposed is unknown to him. The Court found that the signature on the response was not at all similar to Tong's signature on his driver's license or his affidavits.

The Robertson Order and subsequent proceedings

The plaintiff then sought and obtained by requisition another order for substituted service permitting him to serve any further documents in the proceeding by leaving copies in the Property's mailbox. This order was granted by Associate Judge Robertson (the "Robertson Order"). In support of his application, the plaintiff deposed that the defendants had filed a response to civil claim after being served with the amended notice of civil claim at the Property. Subsequently, the plaintiff filed an application for the production of documents and an application for summary judgment. The motion materials were served pursuant to the Robertson Order. Neither application was defended. On July 21, 2025, Justice Veenstra granted judgment in favour of the plaintiff in the amount of approximately $66,000 together with prejudgment interest.

The defendant's discovery of the proceedings

Tong deposed that he resides in Vietnam, and that his mother lives at the Property. He also deposed that his mother does not speak English and does not open mail addressed to Tong. He deposed that he attended at the Property in August 2025 but did not open the mail received from the plaintiff until October 2025. Subsequently, upon reviewing the legal documents delivered to the Property by the plaintiff, he promptly sought legal assistance.

Legal analysis

The defendants cited Ming Sun Benevolent Society v. Philippine Women Centre of B.C., 2021 BCCA 240, for the proposition that if a proceeding in which judgment was obtained was not properly served, the judgment cannot stand and must be treated as a nullity. The plaintiff submitted that the defendants must meet the criteria set out in Miracle Feeds v. D. & H. Enterprises Ltd. (1979), 10 B.C.L.R. 58 (Co. Ct.), which sets out factors for determining whether to exercise the court's discretion to set aside a default judgment: whether the defendant wilfully or deliberately failed to respond; whether the defendant applied to set aside as soon as reasonably possible after learning of it; whether the defendant has a meritorious defence worthy of investigation; and whether the above have been satisfactorily established by evidence.

Application of the Miracle Feeds criteria

The Court found the first factor satisfied, accepting that the defendants did not receive the claim nor file the response, and thus the willful and deliberate test was not made out. Regarding the second factor, the Court found that Tong eventually saw the materials and promptly contacted counsel. The third factor—whether the defendants have a defence worthy of investigation—was not addressed by the defendants on this application at all. However, the Court of Appeal has remarked that the Miracle Feeds criteria are "factors rather than tests" and are not mandatory or exhaustive of the relevant considerations. Further, even where the Miracle Feeds factors are not met, an order may be set aside if allowing it to stand would be a miscarriage of justice.

Consideration of the corporate defendant DDI

The Court noted that the initial originating pleadings were actually served properly on DDI by the process server on February 20, 2024, as he delivered the pleadings to the Property which was the registered and records office of DDI, in accordance with Section 9 of the Business Corporations Act, S.B.C. 2002, c. 57. However, shortly after the service of the originating pleading, on February 26, 2024, the company was dissolved by the Registrar of Companies for failure to file. Thereafter, Section 346 of the BCA applied, which requires that if a company does not have an address for delivery, documents must be served by personal service on any individual who was a director or senior officer immediately before dissolution, or in the manner ordered by the court. There was no personal service on Tong, and the service pursuant to the Robertson Order on DDI was invalid for the same reasons as for Tong.

Ruling and outcome

The Court concluded that the judgment and other orders ought to be set aside as nullities because the originating pleading was not properly served and because the Robertson Order was obtained at least in part on the false premise that the defendants had filed a response to civil claim after being substitutionally served at the Property. The defendants were granted leave to file responses to civil claim within 21 days. Regarding costs, the Court made no finding that the plaintiff did anything improper—he was entitled to rely upon the process server and the Court made no finding about who filed the response to civil claim. Although the defendants were successful on this application, costs were not awarded in their favour. Costs of this application shall await the ultimate outcome of this action and shall be payable in the cause. The exact amount ultimately payable in the underlying debt claim cannot be determined at this stage, as the merits have not been addressed and it remains possible that the defendants have no valid defence to the claim.