McMurtrie v Calver

The case involved a plaintiff, McMurtrie, suing two defendants, Calver and another, over a debt. The first defendant, Calver, failed to respond to the proceedings, resulting in a default judgment being entered against him. The plaintiff then applied to strike out the proceedings against the second defendant on the grounds that the debt was joint and several and could not be pursued against one defendant without the other. The first defendant sought to set aside the default judgment. The court had to determine whether the proceedings against the second defendant should be struck out and whether the default judgment against the first defendant should be set aside.

The court held that the proceedings against the second defendant should not be struck out as the debt was not necessarily joint and several, and the plaintiff could pursue the debt against one defendant independently of the other. The court also held that the first defendant's application to set aside the default judgment was not made within a reasonable time, and the application was dismissed. The court emphasised the importance of timely applications to set aside default judgments and the need for defendants to respond to proceedings to avoid such judgments.

The court ordered that the proceedings against the second defendant were not to be struck out, and the default judgment against the first defendant was to remain in place. The first defendant was ordered to pay the costs of the application to set aside the default judgment. The second defendant was not ordered to pay any costs as the application to strike out the proceedings against them was unsuccessful.