I Have a Default Judgement Against Me. What Should I do?

Grace GaoCivil Litigation

If a default judgment has been entered against you: what should you do? Does that mean it is final and you have to pay the plaintiff whatever the judgment says? The article will provide you some insight into default judgment and what you should do if you have one against yourself.

What is a default judgment?

A Default judgment is when the court makes a judgment against the defendant without having a hearing in court.

When can a default judgment be obtained against a person/company?

After a statement of claim is filed by the plaintiff, the defendant has 28 days to file a defence after the statement of claim is served on him/her. If the defendant does not file a defence within the deadline, a default judgment can be entered against you.

I have replied by contacting the plaintiff’s solicitor. Does that count as a defence or a reply?

Unfortunately, the answer is no. I had a client Mr. A. After he was served a statement of claim, he contacted the plaintiff’s solicitor. He texted the solicitor, providing details reasons why the statement of claim was not valid. He did not receive any reply nor any advice asking him to seek legal advice. Mr. S did not take any further action. After approximately one month, he was served a default judgment. His car was towed by the Sheriff’s office.

What should I do if I get a default judgment against me? Is it final?

The answer to this question depends. UCPR r 36.16(2) provides that the court may set aside or vary a judgment or order after judgment is entered if the judgment or order is a default judgment, except for a default judgment given in open court. The court will apply the following principles to decide whether to set aside the default judgment (Hope JA in Adams v Kennick Trading (International) Ltd (1986) 4 NSWLR 503 at 506-7),

  1. The court will have a look at the whole of the relevant circumstances and decide whether or not sufficient cause has been shown;
  2. If there is an existence of a bona fide ground of defence and an adequate; explanation for the default. They are the most relevant matters to consider;
  3. The defendant must swear to facts which, if established at the trial, will afford a defence;
  4. If the judge concludes that the applicant is lying about the alleged defence and is thus dishonest in raising it, the defence is not “bona fide”;
  5. The Defendant must swear to facts which, if established at trial, will afford a defence: Simpson v Alexander (1926) SR (NSW) 296 at 301;
  6. If the judge concludes that the applicant is lying about the alleged defence and is thus dishonest in raising it, the defence is not “bona fide”;
  7. The applicant does not necessarily fail for want of an adequate explanation for the default. It depends on the circumstances. If merits are shown, the Court will not prima facie desire to let a judgment pass on which there has been no proper adjudication. Evans v Bartlam [1937] AC 473 at 489,
  8. The absence of an explanation for the default, particularly if it is coupled with prejudice to the plaintiff, may justify the denial of relief, but only when considered with other relevant circumstance.

In Mr. A’s case, Di Lizio & Associates successfully helped Mr. A to set aside the judgment by providing reasons why the delay occurred, preparing a detailed affidavit together with a draft defence in order to set aside the default judgment. Once the judgment is set aside, we helped Mr. A to retrieve the car and any extra charge such as storage fee of the car paid by the plaintiff. Be mindful that setting aside the judgment is not the end of the case. It is an opportunity for the defendant to defend him/herself.

Di Lizio & Associates understands that litigations can be stressful to clients. Our team will utilize its experience and strategic approach to assist you. Our lawyers speak fluent English, Indonesian, Italian, Mandarin and Cantonese. Feel free to contact us at any time.