Setting aside default judgment
The court will give a default judgment where the 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.
A defendant/debtor with sufficient cause may make an application to set aside a default judgment. This is made by an application to the court. Alongside the application, a supporting affidavit should set out the grounds upon which the debtor seeks to rely to set aside the default judgment.
When the court is considering an application to set aside a default judgment all of the relevant circumstances will be examined. It is recommended the supporting affidavit include:
- an explanation for the failure to file a defence within 28 days of service of the statement of claim;
- an explanation for any delay in making the application to set aside the default judgment; and
- a statement showing the nature of the defence that will be relied upon if the debtor is allowed to defend the action. The debtor must show a “prima facie bona fide defence on the merits”.
The debtor is not required to detail the whole of the evidence going to the defence in the affidavit. The affidavit simply requires the nature of the defence to be set out.
Applications to set aside default judgments are frequently granted. This is because the courts prefer cases to be heard and determined on their merits rather than by default. That being said, the court must be satisfied that there is a defence to be heard and won’t set aside a judgment if the defendant can’t convince the court that there should be a hearing on the merits. Following a successful application, the court will require the debtor to file a defence within a fixed period of time.
Costs
If the debtor failed to file a defence, the court will generally order the debtor to pay the creditor’s cost as a condition to setting aside the default judgment.
However, if the creditor acted improperly to obtain the default judgment the court may require they pay the debtor’s costs of the application to set aside the default judgment. This may include where the creditor did not serve the statement of claim in accordance with the Rules.
The court may also order a party to pay any disbursements as well as professional costs.
Call Aitken Whyte Lawyers law firm for expert and experienced advice to represent you at this important time and for solutions and results or if you want to learn more about litigation and disputes in Queensland. To discuss your matter, contact us on:
> Brisbane and surrounds 07 3229 4459
> or email us at enquiries@awbrisbanelawyers.com.au
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