Setting Aside a Default Judgement Sunshine Coast

Are you looking to set aside a default judgement in Queensland?

If so, you may feel a little overwhelmed and confused and this may even be a foreign subject for you.

There are several reasons why you may be in the position to have a default judgement served on you and it can feel like the end of the road for your matter. Try not to panic!

There are ways that you and your lawyer can get this judgement set aside so you can continue to fight for what you are looking for from this matter.

This article will discuss the basics of having a default judgement set aside so that you can continue along with your case in the way you wish.

Setting aside a default judgment in Queensland? Be referred to the best litigation lawyers on the Sunshine Coast

What is a Default Judgement?

So, you’ve had a default judgement made against you. But what is it and what does it mean for you?

A default judgement occurs when a judge decides to make a judgement in favour of a plaintiff due to the lack of compliance with the law or court procedure by the defendant.

In simpler terms, it is practically when the opposite party in your matter, provided of course you are the defendant, wins the case because you did not follow the court rules and file your defence within 28 days after being served with the claim.

This may occur for several reasons as there will be various tasks and procedures you will have to undergo over the course of your matter.

This can cause quite a panic among defendants. After all, doesn’t this mean that I have lost my case? Well, fortunately for you, it does not necessarily mean that!

It will not be the responsibility of the plaintiff to serve it on you, however, so you may only find out about your default judgement when action is already being taken.

Luckily, this judgement can be set aside provided you present a valid reason to do so to the court or judge, so this is not necessarily the end of the road.

What Does the Law Say about Setting Aside a Default Judgment?

The rules regarding setting aside a default judgement and default judgements, in general, are discussed by the Uniform Civil Procedure Rules 1999, which states:

“290: Setting aside a judgment by default and enforcement

The court may set aside or amend a judgment by default under this division, and any enforcement of it, on terms, including terms about costs and the giving of security, the court considers appropriate.”

Further, the main case on this issue is Unique Product Marketing Pty Ltd v Bortek Sales Pty Ltd [2000] QDC 314 where Shanahan DCJ set-down some legal principles in relation to setting aside a regularly entered default judgment.

They include:

Whether the defendant has raised a prima facie defence on the merits;
Whether there is a good reason why the defendant failed to file a defence;
Whether there has been any delay by the defendant in bringing the application;
The defendant’s conduct in the action before and after judgment;
The defendant’s good faith; and
Whether the plaintiff would be irreparably prejudiced if the judgment is set aside which cannot be adequately compensated by a suitable award of costs.

When Can a Default Judgement be Set Aside?

Now that we know that a default judgement can be set aside, it is important to know when such action can take place.

There are certain circumstances that allow a default judgement to be set aside, meaning that you cannot just set it aside whenever.

One circumstance that allows for a judgement to be set aside is if you have a genuine and reasonable defence for why you could not follow court procedure.

If this is the case for you, you will have to file to have the judgement set aside by the court. In doing so you must prove several things to the court.

You must provide evidence that you acted immediately to get the judgement set aside. If you did not do so, you must provide a genuine reason for why you did not do so.

You must also, of course, present a defence that is reasonable and can be argued.

Another circumstance in that you can get a judgement set aside is if the judgement was come to under irregular circumstances. This may occur if you do not receive the relevant information to allow you to follow the procedure.

Finally, you may also have a default judgement set aside if you have paid the debt to the other party and they have agreed to set aside the judgement. You must provide evidence to the court of this having occurred and the judge may then set it aside.

How Can I Set a Default Judgement Aside?

So, how can I set aside the judgement? To set aside the judgement there are several steps you have to follow.

First, you will have to apply for it to be set aside at the court in which the original claim was made.

This may be anywhere from a Magistrates Court to a Supreme Court.

Whichever court you file in, you will find the appropriate forms on their website which you must fill in.

You may also wish to seek legal assistance to set aside the judgement.

The application to set it aside must be accompanied by an affidavit that states the reasoning behind the application.

Another possibility is that the debt was paid and that the other party consented to the judgement being set aside, including a slightly different process.

You must attach a form proving the consent of the other party that has been signed by both sides.

If you wish to file a defence, you should attach a draft of the defence to your application.

Consider Legal Assistance

Setting aside a default judgement can be quite a difficult process and can involve some complex legal proceedings.

For this reason, it is wise to employ a solicitor to help you with this process.

A legal professional will have more experience with setting aside judgements and can likely help you to be successful and do so in a more efficient manner.

Setting aside a default judgment – Key Takeaways

Setting aside a default judgement can be difficult.

It can also cause quite a lot of anxiety in defendants, due to the seeming loss of their matter.

This is why it is important that you are knowledgeable about the process and what it means for you.