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
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
A statement of defense 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.
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