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Setting aside default judgment

If default judgment is entered against a respondent in relation to a minor civil action, it is possible for a respondent to subsequently apply to the court to set aside the judgment. The respondent may apply to have the judgment set aside by filing an Interlocutory Application (Form 77) and supporting Affidavit (Form 12), setting out the reasons why judgment should be set aside.

Before the court decides if the default judgment should be set aside, the respondent must convince the court that the respondent had a valid reason for not filing the defence within the 28 days and that they also have good grounds for defending the claim. There are a number of grounds on which a respondent may apply to have judgment set aside, including:

  • the claim was not served on the Respondent at all; or
  • the claim was not served on the Respondent in time (at least 28 days before the date on which default judgment was entered) [Uniform Civil Rules 2020 r 142.11(1)(a) and r 142.11(1)(b)]; or
  • the Respondent has a reasonable excuse for not filing a Defence in time [r 142.12(1)(a)]; and
  • the Respondent has a reasonable basis for defending the claim [r 142.12(1)(b).

When making the application to set aside the default judgment, the respondent must seek the courts permission (leave) to file a Defence (and/or Cross-Claim). The respondent may wish to include a copy of their draft Defence (and/or Cross-Claim) as supporting documents to the Interlocutory Application.

If the respondent wishes to admit the applicant's claim, then an application to set aside default judgment may not be appropriate. Legal advice should be sought before making an application to set aside default judgment.

Setting aside default judgment  :  Last Revised: Thu May 28th 2020
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