Default judgment is judgment entered by one party (let’s call them Party A) against another party (let’s call them Party B) where Party B has failed to defend a claim that has been brought by Party A.
Typically this occurs in debt recovery cases where a party realises the significance of a Statement of Claim but fails to file a defence (or respond) to the Claim within the time period provided.
What happens once default judgment is given?
Once a default judgment is obtained, a party can commence enforcement action against you – this can include the sheriff seizing your personal property, bankruptcy or obtaining an order to sell your house.
If you receive a Statement of Claim, make sure you deal with it promptly – either by paying the debt (if they are claiming a debt), negotiating with the claimant or by filing a defence. The time period to file a defence is 28 days from the date you are served with the Claim.
It’s too late! I have default judgment against me, what now?
If you have default judgment against you, the first step is to negotiate with the other party or their lawyer to see if they will consent to having the default judgment set aside. In some instances, they will agree to it, on the proviso that you pay some of their costs.
If they don’t agree to this, then you need to file an application (sometimes known as a notice of motion) with the Court. This application should be made as quickly as possible.
Filing a Default Judgment application
Making an application to set aside default judgment involves the filing of the application with an affidavit (statement) explaining:
- why you didn’t respond to the Claim promptly;
- that you have a defence to the claim; and
- why you would like the judgment to be ‘set aside’.
Drafting an Affidavit
Ideally, your affidavit should also attach a copy of your draft defence so the Court can see that you have an arguable defence to the claim.
The matter will then proceed to a motion hearing where the Court will hear submissions from each party and then decide whether the default judgment will be set aside. If you are successful, then the Court will allow you the opportunity to file your defence and the matter will proceed to an eventual hearing.
LegalVision has experienced litigation lawyers who can assist with applications of this nature. Get in touch with the firm today on 1300 544 755 and our Client Care Team will guarantee a free legal health check and fixed-fee quote for any services you may be considering. We look forward to assisting you!
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