Court of Appeal

CASE NO.                                                     VOL. NO.                                           PAGE

ATLANTIC PIPELINE RESOURCES         - and -            GARY WIDMEYER

INCORPORATED

Appellant                                                                    Respondent

ATLANTIC PIPELINE RESOURCES         - and -            ROY NORTH ENTERPRISES

INCORPORATED                                                                 LIMITED and ROY NORTH

Appellant                                                                    Respondents

C.A. No. 158237 & C.A. No. 158236                     Halifax                                    ROSCOE, J.A.

                      [Cite as: Atlantic Pipeline Resources Inc. v. Widmeyer, 2000 NSCA 22]

APPEAL HEARD:                                                   February 1, 2000

JUDGMENT DELIVERED:                                   February 1, 2000

WRITTEN RELEASE OF ORAL:                         February 3, 2000

SUBJECT:                                       Practice - Applications to Default Judgment                                                         Rule 12.01, Liquidated Damages

SUMMARY:              The appellant made applications to set aside default judgments which were dismissed by the Chambers judge on the basis that it had not been shown that there was a reasonable excuse for the failure to file a defence. (Ives v. Dewar, [1949] 2 D.L.R. 204 (N.S.C.A.))

ISSUE:                      Whether the Chambers judge erred in not setting the matter over for an assessment of damages because there were arguable issues raised and the claims were not for liquidated damages.

RESULT:                  Appeal allowed. Claims were not for liquidated damages. Prothonotary did not have jurisdiction to enter default judgments for unliquidated claims. Since this issue had not been raised before the Chambers judge, appellant ordered to pay respondents costs on appeal and respondents entitled to retain funds pending the assessment of damages.