The Defendants in this action brought a motion seeking a declaration that the default judgment should not be enforced against them, or, alternatively should be set aside. The Court dismissed the motion.
The motion was brought on the basis that the proper corporate name for the entity was not used. The Court held that it was the Defendants' counsel who advised the Plaintiffs of the proper name for the businesses. Furthermore, although the Plaintiff undertook corporate searches and could not locate that name for the business, they relied on the information provided by counsel for the Defendants and counsel for the Defendants understood that it was the activities at the two relevant places of business that were of concern to the Plaintiffs.
The Court held that it was disingenuous for the Defendants to now seek to have a default judgment set aside based on their own misrepresentations. As the only explanation for not filing a Statement of Defence was that they were not properly served and the Court held that this explanation was without merit given their active participation in providing the incorrect corporate name and failing to take any measures to correct misleading and incorrect information, the motion was dismissed. Similarly, the Court refused to relieve the Defendants of their personal liability.