SETTING ASIDE A DEFAULT JUDGMENT: PART 2 of 2
If it has been established that judgment has been entered against the Defendant and that person now wishes to have it set aside, you will need to explain to the Court a valid reason for not filing a defence within the time allowed prior to the entry of default judgment. Such examples are:
- The Complaint or Writ was served by post and it was not received by the Defendant;
- The Complaint or Writ was served at the wrong address;
- The Defendant was sick, in hospital or overseas; and
- The Defendant gave instructions to a lawyer who failed to file a defence in time.
The Defendant must also demonstrate to the Court that a genuine defence exists, to justify the matter being reopened for consideration again. For example:
- The debt or goods claimed are not owed;
- The amount claimed is disputed; or
- The debt has already been repaid or the goods have already been returned.
If a default judgment is successfully set aside, the Court will usually order the Defendant to file a defence. Further, it the Court takes the view that it is the Defendant’s fault for failing to file a defence, a costs order may be made against the Defendant.
If it is shown that service was defective or that the Defendant did not receive the Complaint or Writ, the Court can also order that:
- “Each party bear their own costs” which means that each party has to pay their own legal costs;
- “No order as to costs” which also means that each party will have to pay their own costs; or
- “Costs reserved” or “costs in the cause” which means that the costs of the application to set aside the application will not be decided until the case is finished.
If you are considering commencing proceedings or about to commence legal proceedings but require legal advice as to your options and obligations, contact Steven Dangerfield, Angela Catanzariti, Bojana Balen or Lynda Lim of Dangerfield Exley Lawyers for a frank discussion about your legal rights.
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