If you or someone you know need to apply to have a default judgment against you set-aside then you may like to read on.
To be successful a set-aside application needs to satisfy the court of three things:
- a satisfactory reason for failing to appear before the court previously;
- that there was no unreasonable delay in making the application; and
- that there is a prima facie defence available to you on the merits of the matter.
Failure to Appear
Ordinarily it will not be sufficient to simply state that you were unaware of the proceedings. Instead, you will need to show that you missed a deadline for a reason, and likely why that reason was outside of your control. For example, if you were away on an extended holiday when the proceedings were commenced or you have another compelling reason.
Any delay in bringing the application is a matter of degree. If a delay is many months (as opposed to a few weeks) then there is a greater likelihood that the court may not be inclined to grant what is an ‘indulgence’ on the part of the court in setting aside the judgment. In other words, don’t leave making your application too long and instead, treat it as a priority. The longer it is left, the more that delay may count against you.
With regards to the third consideration of an arguable defence on the merits, this is often described as the primary consideration in a set-aside application and it is what the courts will want to be most satisfied of. The test that is applied tends to be whether the defence is reasonably arguable.
In simple terms, you need to be able to show to the court that if the matter ends up in a trial, that you at least have some valid arguments as to why you shouldn’t be liable. If you cannot convince the court that you have a reasonable defence, then the default judgment will not likely be set-aside. Although it is not a requirement, in most instances providing a draft Statement of Defence will also be of assistance to inform the court of your proposed defence.
With regards to costs, you will need to be prepared to pay the other sides legal costs of responding to the application, which, where the judgment has been regularly entered, may include the costs of the other side reasonably opposing the application regardless of the outcome. What those costs will be will likely depend on the complexity of the matter and your application.
Finally, if you have read this far and think that you need some practical advice or assistance in relation to your situation, then now is probably the time to get in touch. Austral Legal can help and we offer an initial discounted 30-minute SmartMove appointment for $80 by phone or in person at our office. Bookings can be made online through our website or simply by phoning our office on 08 9745 9550. Once we have a handle on what is required, we may well be able to offer a fixed fee for any further legal services, giving you cost certainty from the start. Austral Legal. Practical advice.