Claim: Damodar Arapakota (Plaintiff) seeks damages and indemnity from Haji Makki (Defendant) for his alleged role in the oppression of the plaintiff by third parties at Imex Systems Inc., a company where the plaintiff was a founder, CEO, and director.
Key Issues
Should the defendant be noted in default?
If so, should the default be set aside?
Court’s Findings
Default Noting: The defendant failed to serve a statement of defence within the required time, and due to an administrative court error, the plaintiff’s request to note the defendant in default was not properly recorded. The court found that the plaintiff had followed the proper procedure, and the defendant should have been noted in default.
Setting Aside Default: The court considered several factors, including:
The defendant’s conduct was not improper.
The delay in serving the defence (about 1.5 months) was not unreasonable.
The case is complex and involves significant financial claims.
There is no significant prejudice to the plaintiff.
The defendant has an arguable defence, including res judicata.
Decision
The plaintiff’s motion to note the defendant in default was granted.
However, the default was immediately set aside to allow the case to proceed on its merits.
The defendant's previously filed statement of defence was validated to avoid procedural redundancy.
The court declined the plaintiff’s request for a default judgment.
The motion judge on February 11, 2025, will decide whether the defendant’s motion to dismiss the case should proceed.
Costs
Parties are encouraged to settle costs.
No damages or monetary award were granted in this decision.
