In what has to be one of the more unusual cases I have come across, a Superior Court judge has set aside a default judgment after being satisfied that the process server hired by the plaintiff to serve its claim swore “untruthful” affidavits of service which were subsequently relied on by the plaintiff to obtain default judgment.
The plaintiff in a franchise dispute had its lawyer prepare a statement of claim. The plaintiff’s lawyer hired a process server to serve the corporate and personal defendant. The process server advised the plaintiff’s lawyer that the claim had been served on both defendants and swore fairly detailed affidavits of service.
A statement of defence was never provided and the plaintiff obtained default judgment. Approximately a month after obtaining the judgment, the plaintiff attempted to set up an examination in aid of execution for one of the defendants. This caught the defendant quite by surprise and the defendants moved to have the judgment set aside on the basis that they were never served.
The affidavit evidence tendered by the defendants made it apparent to the motions judge that the process server was untruthful in swearing his affidavits of service. Given that the statement of claim had never been served, the motions judge had little choice but to set aside the judgment.
I suspect that the plaintiff will be asking for a refund on the process serving fees.