Have you ever missed a court date or failed to respond to a lawsuit? If so, you may be familiar with the term “default judgment” or summary judgment. This legal term refers to a decision made by a judge in favour of the plaintiff when the defendant fails to appear or otherwise respond to a legal action.
A default judgment debt can have serious consequences, including financial penalties and damage to your credit score. In this article, we’ll explore default judgment, how it works, and what you can do if you find yourself facing one.
What Is a Default Judgment?
These are court orders against defendants who fail to respond to a lawsuit. This means that the plaintiff who filed the lawsuit gets the relief he or she requested. This could include monetary damages or the return of property.
What Are the Reasons Why a Party Might Fail To Respond to a Lawsuit?
There are several reasons why a defendant might fail to respond to a lawsuit from the other party. Some of the most common causes include:
- Not being aware that someone was suing them. This can happen if the plaintiff never served the defendant with the lawsuit, or if the plaintiff served it but the defendant did not understand what it meant.
- Thinking that they do not have to respond. This is a common misconception. Even if a defendant believes they do not have a strong case and don’t have further evidence to back their claims, they still need to respond to the lawsuit to protect their rights.
- Not being able to afford to hire an attorney. Legal fees can be expensive, and not everyone can afford to hire an attorney to defend them in a lawsuit.
- Not understanding the legal process. The legal process can be complex, and it can be challenging for people to understand their rights and obligations.
- Trying to ignore the lawsuit. Some people mistakenly believe that if they ignore a lawsuit, it will go away. However, this is not the case. If a defendant fails to respond to a lawsuit, the court may find them in default and the court may award the plaintiff a judgment against them.
It is important to explain a failure to file a defence and that you be honest with the court. To establish a prima facie defence on the merits, you will need affidavit material to substantiate the grounds on which you are seeking to defend the claim. This is a very important difference with the normal drafting of a defence, as you need to present the actual evidence that you will seek to rely on in your defence.
How to Apply for Default Judgment in NSW, Australia?
According to Legal Aid NSW, you can apply to the court for default judgment for money if you filed and served a statement of claim and the defendant hasn’t:
- paid the money you are claiming
- filed a defence form, or
- filed an acknowledgment of liquidated claim form.
Moreover, you must wait until 28 days after the statement of claim was served. Here are the steps that you must follow to apply for a default judgment:
Take Note of the Date When the Defendant Was Served
If the defendant was not served with the statement of claim within 28 days, you cannot file for a default judgment. You can determine when the statement of claim was served if you did not personally deliver it by:
- checking the affidavit of service form created by the process server
- checking with the court if the court served the statement of claim by mail.
The statement of claim is considered served:
- On the fourth working day following posting if it is served by mail on a person or business.
- Seven days from the day it was posted for service on a partnership or a business using a business name.
The defendant will have until the end of the following business day to submit their defence form if the 28th day occurs on a weekend or a holiday.
Fill up Two Forms
- 38 – Notice of motion Form – default judgment for the liquidated claim.
- 41 – Affidavit of Service Form (You will not need an affidavit of service form if the court served the statement of claim. If a process server serves it, they should complete an affidavit of service form and give it to you).
You can download them from the Local Court or the Uniform Civil Procedure Rules (UCPR) website. You can also complete and file these forms using the NSW Online Registry. Moreover, you can view a sample of the notice of motion form here. A filing fee is also payable upon lodgement.
File the Forms.
- The notice of motion and the affidavit of service must be brought or sent to the regional court where the statement of claim was filed if you did not file the form on the NSW Online Registry.
- After executing the affidavit in the notice of motion, you have 14 days to file it (not the affidavit of service).
- You must keep the original and one copy in your files. The court will keep the original, and you will receive the stamped copy.
- The notice of motion and the affidavit of service need not be served on the defendant, and there is no filing cost associated with either document.
Claim Your Default Judgment.
The local court registrar will decide whether a default judgment is rendered against you. Also, there is no requirement for you to go to court. In general, the following circumstances will result in the court awarding you default judgment:
- that the defendant was properly served with the statement of claim
- it has been more than 28 days since the date of service
- the defendant has not paid you the money you have claimed, and
- the court records show that the defendant has not filed a defence or acknowledged a liquidated claim.
When you get a default judgment, you can now enforce such judgment against the defendant.
When to Seek Legal Advice on Default Judgment in Australia
There are a few instances when you should get legal representation on a default judgment in Australia. These include if you have/are:
- Facing a lawsuit.
- Failed to file a defence to a lawsuit.
- Received a default judgment.
- Being garnished or have a lien placed on your property.
- In need of help understanding the legal process or your legal rights.
The legal process can be complex, and it can be challenging for people to understand their rights and obligations. An attorney can help you understand the legal process and your legal rights and can represent you in court if necessary.
It is essential to seek legal advice as soon as possible after getting a lawsuit, even if you believe that you do not have a strong case. If you have any questions or concerns about default judgment, don’t hesitate to consult our competent lawyers at JB Solicitors.
Contact us today.