This guide will help you respond when a judgment debtor makes an application to the court to set aside a default judgment. For more information on this application see Responding to an Application to Set Aside Default Judgment.
There are five steps you should take:
If the judgment debtor applies to set aside the default judgment, the court will send you a copy of the Notice of Motion to Set Aside Default Judgment.
This document includes the judgment debtor's Affidavit setting out the reasons for their application. You should also receive a 'notice of listing', which tells you the date, time and place to go to court. On this date there will be a brief court hearing about the application.
You should read the Affidavit carefully and think about the reasons the judgment debtor gives for why the judgment should be set aside.
You should get legal advice about the strength of the judgment debtor's application so you can decide how to respond and whether you need your own Affidavit.
If you disagree with what the judgment debtor says in their Affidavit, you can prepare your own Affidavit explaining what you don't agree with and why. You should annex (attach) copies of any relevant documents. Relevant documents could include:
You need one form:
You can get copies of forms from:
You should try to serve your Affidavit on the judgment debtor before the day of the hearing. You can give a copy of your Affidavit to the registrar or magistrate at the hearing.
The hearing will be before a registrar or magistrate. You can check this with the court registry before the hearing.
If you have prepared an Affidavit, you should give a copy to the defendant or their lawyer if you have not already served a copy on them before the hearing. You should also tell the registrar or magistrate that you have prepared an Affidavit and give it to the court officer to hand to the registrar or magistrate.
To have the default judgment set aside the judgment debtor must show:1. that there is a good reason why they didn't file a Defence within 28 days; and2. that they have a bona fide (genuine) defence.
For more information about what the debtor must show the court, see Responding to an Application to Set Aside Default Judgment.
If the court does not set aside the default judgment, your judgment stays in place. You can continue to take action to enforce the judgment.
The judgment debtor may file another notice of motion. There is no limit on the number of times a judgment debtor can file a Notice of Motion to set aside the judgment.
If default judgment is set aside, the registrar will usually order the judgment debtor to file a Defence within 14 to 28 days. If the judgment debtor does not file a Defence in this time, you can file a new application for default judgment.
Where the judgment debtor is found to be at fault for failing to file a Defence within 28 days, the court may order the judgment debtor to pay your 'costs thrown away'. These are the costs of getting the default judgment, such as filing fees and the cost of any enforcement process.
Where the judgment debtor shows that they did not receive the Statement of Claim or that service is faulty, you may be ordered to pay the debtor's costs. The court can also order that: