A court can make a default judgment when a defendant does not respond to the claims made by the plaintiff. The plaintiff can make an application to to court anytime after the time limits for filing the complaint have lapsed. A default judgment is a court order usually decided in favour of the plaintiff as the defendant has failed to defend their case. That is, the plaintiff does not need to prove their case against the defendant to obtain the judgment. They merely need to establish that they have served the defendant with the claim and that they have failed to provide a defence within the time period required.
Obtaining default judgment
Once a default judgment is obtained, the plaintiff can commence enforcement action against you. The judgment will usually require the defendant to do what the plaintiff has outlined in their Statement of Claim. Enforcement action can include a warrant to seize property or debt instalment orders against the defendant.
Each Court has its own procedure for entering a default judgment.
Default judgments in the Magistrates’ Court
If the original complaint by the plaintiff was validly served and no defence was entered into within 21 days of service, after the 21 day period has expired, the plaintiff can then apply to the court for an order for default judgment. The plaintiff must then complete an application for order in default of defence (Form 21A) along with an affidavit in support of the application if the application is for something other than a debt or liquidated demand.
Once the forms are filed, a registrar or judicial officer will notify you of the outcome in writing. If successful, you may then take steps to retrieve the money or goods owed to you.
Default judgments in the County Court
A plaintiff may enter a default judgement in the County Court in two circumstances:
- If the defendant has not filed an appearance within the time limit (usually 10 days); or
- If the defendant, having filed an appearance, does not file a defence within 30 days after appearance.
When applying to enter a default judgment, the plaintiff must:
- File a notice requesting a search for an appearance in the registry;
- File an affidavit of service of the writ; and
- File a Statement of Claim (if not already done so as apart of the writ).
Default judgments in the Supreme Court
Default judgments in the Supreme Court are only available to the plaintiff where the proceeding was issued by writ. The circumstance in which a plaintiff can enter a default judgment in the Supreme Court are the same as that of the County Court. The procedure to do so, however, is slightly different. When applying to enter a default judgment, the plaintiff must:
- File a notice requesting a search for an appearance in the registry;
- File an affidavit of service of the writ;
- File a Statement of Claim (if not already done so as apart of the writ);
- Draft a judgement in form 60G; and
- File an affidavit setting out the date that the writ was served, the date that the appearance was filed and stating that no defence has been served.
However, if you are planning to apply for a default judgment, you should write to the defendant and notify them of your intention. In doing so, you are preventing any question that the defendant was not made reasonably aware of the claim against them. Thus making it harder for the defendant to have the judgment set aside.
Legal representation
ASAP Lawyers “has your back” when it comes to litigation. Our lawyers will act in your interests and fight to protect your rights in Court. If your matter requires an additional expertise, we have good relationships with expert barristers who we can engage on your behalf.
If you need to issue proceedings or have received a claim against you, contact ASAP Lawyers on 03 9450 9400 to arrange a consultation. We can help you navigate through the often complex and stressful aspects of litigation and fight to get the best results possible.