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Making an application to set aside default judgment

Making an Application to Set Aside a Default Judgment

Have you recently found out that there is a default judgment against you? If so, it is not too late. There are steps which you can take to set aside the default judgment and defend the claim against you.

 

What is a default judgment?

A default judgment is a judgment which a plaintiff has obtained without having a hearing. That is, a Court has handed down a judgment against a defendant to the proceedings because no defence was filed to the claim or it was assumed that the defendant chose not to fight the claim.

Default judgments are typically entered in debt recovery cases where a party has received a Statement of Claim, but fails to file a defence to the claim within the time period provided. The time period to file a defence is 28 days from the date of service of the claim.

It may also be the case that the defendant was not aware of the proceedings because the Statement of Claim was not properly served. For example, the Statement of Claim may have been sent to an old address or served on someone other than the defendant at the defendant’s current address, but that person did not notify the defendant of the claim.

There are significant consequences for a defendant once a default judgment has been entered. The plaintiff might be able to commence an enforcement action, such as having a sheriff seize personal property of the defendant or commencing bankruptcy proceedings against the defendant.

 

What should you do if you have a default judgment against you?

If you become aware that a default judgment has been entered against you, there are a number of steps which you can take.

Firstly, you should contact the Registry of the Court which entered the default judgment and obtain a copy of the default judgment and the affidavit of service. Consideration should be given as to whether you have a defence to the claim against you. If so, you can contact the other party and/or their solicitor and see if they will consent to having the default judgment set aside.

If the plaintiff does not consent to having the default judgment set aside and you decide you want to defend the claim, you can make an application to the Court to set aside the default judgment. Making an application to set aside a default judgment involves filing an application together with a statement (affidavit) which sets out:

  • an explanation as to why you did not file a defence within 28 days of service of the Statement of Claim;
  • that you have made an application to set aside the default judgment as soon as possible; and
  • that you have a defence to the claim. In this regard, it is helpful to attach any supporting evidence you have together with a draft defence which you would file if the default judgment were to be set aside.

Applications to set aside default judgments are frequently granted because Courts prefer cases to be heard on their merits and are sympathetic to letting parties have their day in Court.

If the plaintiff was able to obtain a default judgment against you because you failed to file a defence in time, a Court will generally order you to pay the plaintiff’s costs as a condition to setting aside the default judgment.

If you are successful in having the default judgment set aside, the Court will allow you to file your defence and the matter will proceed in the normal course.

 

Conclusion

If you are served with a Statement of Claim it is important that you respond within 28 days otherwise a plaintiff can obtain a default judgment against you. If you receive a Statement of Claim or a default judgment we recommend that you obtain legal advice to avoid any adverse steps being taken against you.

If you or someone you know wants more information or needs help or advice, please contact us on 1300 149 140 or email info@lawbase.com.au.

 

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