Useful Resources

Default judgement – setting aside

What’s a default judgement?

A court will issue a default judgment where a defendant has failed to file a defence.

Once the plaintiff/creditor obtains a default judgment, they will then have twelve years to enforce payment of the judgment debt.

It will go on your credit record too. No surprises there. But did you know that if you don’t address the situation enforcement action could be taken against you without your notice? Imagine if payments to you were suddenly redirected to someone else without your knowing? Or what if someone turned up to take your possessions?

What can I do for you?

Don’t standby and that your credit record be destroyed or watch as your positions are repossessed.

Call me today, let’s get started.

Step 1: Lets confirm details of the default judgement

You will likely not have the full details of the case and default judgement against you, for example because you only found out about it when the sheriff came to your place or money was missing from your bank account.

Step 2: Let’s get the forms ready

Step 3: I’ll need to prepare an application and affidavit which will at the least:

1. Ask the court to set aside the default judgement and allow you to file a defence

2. Ask the court to stay enforcement until at least the hearing of your motion

3. State how costs should be dealt with.

The affidavit will:

1. Explain why a defence was not filed;

2. Explain any delay in applying to set aside the default judgement;

3. Contain details of your defence to the claim;

4. You need to sign the affidavit

Step 4: I will file your forms

Your application and the affidavit will need to be filed at the same court where the statement of claim was filed and the default judgement entered. It

There is may be filing fees too.

Step 5: we will need to file the original plus a copy of the application and affidavit.

The court will keep the original and give us back a stamped copy. I will then need to make a copy of the documents and serve them on the plaintiff or their lawyer.

Step 6: The court will give you a hearing date.

Step 7: We will go to court

At the hearing the registrar or magistrate will consider your application and affidavit and any submissions from you and the plaintiff.

If the court did not set aside the default judgement, you may be able to apply to have that refusal reviewed. You must do this within 28 days of the decision.

If we win

If the court sets aside the default judgement, the Registrar will make orders for you to file a defence within a certain time (usually within 14 days). If you do not follow these orders the plaintiff can apply to have the judgement re-entered.

Costs

If the court finds that the failure to file a defence within 28 days is your own fault, the court will normally order you to pay the plaintiff's 'costs thrown away'. This is the cost of them attending the hearing, as well as the cost of any enforcement action they may have already taken.

If you are able to prove that you did not receive the statement of claim or that the plaintiff did not serve it properly, the plaintiff may be ordered to pay your costs.

The court may instead order:

1. 'Costs in the cause'. This means that the costs of the application to set aside judgment will be dealt with at the end of the case.

2. 'Each party bear their own costs'. This means that you and the plaintiff each have to pay your own costs.

3. The court may also order a party to pay any disbursements as well as professional costs.

4. Other types of cost to wards can also be made in certain circumstances.

Don’t delay! Time is of the essence! Call me today to discuss.