A plaintiff may seek to have a default judgment if their defendant has proven unresponsive. This is because default judgments are judgments made against the defendant by the court upon application where the defendant has failed to file a defence or respond to a statement of claim.
When to Apply for a Default Judgement
For a default judgment application to be made, there are a few requirements:
- The defendant has not responded to the statement of claim or failed a defence within 28 days of being served,
- The defendant has not paid the money or returned the goods to the plaintiff,
- In a claim for money, the defendant has not filed an acknowledgment of liquidated claim form.
Once a defence has been filed or the defendant has provided the goods or money, the plaintiff will no longer be able to file an application for a default judgment.
A plaintiff will also be posed to a time limit as they must file a default judgment application within nine months of filing the statement of claim. If a defendant has not responded to a statement of claim and the plaintiff has not applied for a default judgment, then the court can dismiss the case. In this case, the plaintiff can restart the case by filing and serving a new statement of claim.
Applying for a Default Judgment
A plaintiff seeking to secure a default judgment will need to file a notice of motion with a supporting affidavit. There are two types of notice of motions depending on whether the default judgment is for goods or money. Additionally, the supporting affidavit will need to include details about the defendant’s identity; the amount of money or goods they owe; and the total amount of costs the plaintiff hopes to be awarded. Copies of these forms are available at the local court and the uniform civil procedure rules website.
Defendants Facing a Default Judgment
A defendant who has a default judgment against them can seek to have it set aside. The first step is to contact and negotiate with the plaintiff to see if they will agree to have it set aside, however, if this fails the next step would be to file a notice of motion and a supporting affidavit. The notice of motion essentially will be to request the court to set aside the default judgment and allow the defendant to file a defence. The affidavit will provide further details including a reasonable explanation why the defence was not filed in time and evidence supporting the defence.
Outcome of a Default Judgment Application
Once a default judgment application has been filed, the registrar at the local court will decide whether or not the application is successful. The plaintiff will not need to attend court unless they are seeking payment for the value of goods that has not been returned by the defendant. Applications are commonly granted if the application has been filed properly. This means that the notice and affidavit shows that the defendant was served properly with a statement of claim; they have not responded within 28 days since the date of service; and that goods or money has not been returned to the plaintiff by the defendant. Once a default judgment has been granted to the plaintiff, they will then be entitled to seeking enforcement of that judgment.
Consequences of a Default Judgment
A default judgment can have both positive and negative outcomes for the plaintiff and defendant respectively. A default judgment assists plaintiffs left in the dark by securing a remedy for their case in a quick and efficient manner. This is because progress of a case will not solely depend on the responsiveness of a defendant.
However, default judgments can have an ever greater impact on defendants. It is in the interest of a defendant to defend their interests in a claim made against them and ultimately, ensure that the plaintiff is awarded an appropriate amount in light of these interests held by the defendant. Not only will the defendant be obligated to pay the plaintiff’s legal costs, default judgments will also significantly impact a defendant’s future finances. As an official record of the defendant’s failure to settle debt, the judgment will appear on the defendant’s credit report and hinder them from obtaining mortgages or loans.
With these severe ramifications, it is advised that both plaintiffs and defendants seek further legal advice in order to navigate the default judgment process successfully.
If you need assistance with a default judgment, get in touch with us via the contact form or by calling 1300 337 997.