Recently the DE team was contacted by a client with the following urgent query:
“Help! I’ve just had a Sheriff come and knock on my door wanting to seize my furniture and other household items. The Sheriff advised there was a judgment against me and a Writ had been issued by the Court. I am not aware of any legal proceedings that I’m involved in and as far as I’m concerned, I do not owe any money to anyone. What can I do to stop the Sheriff from seizing my property?”
Sometimes, the first time a person (Defendant) will be aware that there is a default judgment against him/her is when the Sheriff turns up at the door. This may have arisen when a Complaint or Writ was:
- Sent to an old address and was not forwarded onto the Defendant;
- Personally served on (given to) someone at an old address;
- Personally served on someone at the current address but it was not passed onto the Defendant; or
- Not served on the Defendant at all as the person taking legal action has obtained an order from the Court for substituted service (meaning the Court allowed for the Court document to be served in a manner other than personal service, for example to be delivered to another person such as a relative who is believed to be in contact with the Defendant).
It is important to check with the Court whether there is a default judgment in place against the Defendant. If default judgment has been entered by the Court, copies of the following documents should be obtained as soon as possible:
- Originating process whether it be a Complaint or Writ;
- Affidavit of Service; and
It may then be possible to apply to the Court to have the default judgment set aside. To do so, it must be demonstrated to the Court that:
- There is a good reason as to the failure of lodging a defence or not attending Court;
- There is a bona fide, arguable defence; and
- Any other reasons as to why it would be just or fair for the Court to reopen the proceeding.
If you are considering commencing proceedings or about to commence legal proceedings but require legal advice as to your obligations, contact Steven Dangerfield, Angela Catanzariti, Bojana Balen or Lynda Lim of Dangerfield Exley Lawyers for a frank discussion on your legal rights.
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