You cannot get a default judgment unless 28 days have passed since the defendant was served with the Statement of Claim.
If you did not serve the defendant yourself, you can find out when they were served by:
For service by post on an individual or a company, the Statement of Claim is taken to be served on the fourth working day after it was posted.
For service on a business running under a business name or a partnership, the Statement of Claim is taken to be served at the end of seven days after the day it was posted.
If the 28
th day falls on a weekend or public holiday, the defendant will be able to file the defence up to the next working day. You can file for default judgment the next working day after that if they don't.
You need two forms:
You can get copies of forms from:
You will not need the Affidavit of Service form if the court served the Statement of Claim by post. If it was served by a process server, they should have already filled out and signed an Affidavit of Service.
An Affidavit of Service is evidence that the Statement of Claim has been served on the defendant. For information on filling out and signing an Affidavit of Service, see
You can fill out the Notice of Motion form in neat handwriting in blue or black pen. You can also fill it out on your computer screen. The
Guide to Completing Approved Forms hs instructions on how to do this.
It will help to have your copy of the Statement of Claim and the completed Affidavit of Service with you while you fill out the Notice of Motion. You should fill in the Notice of Motion with the same court details and title of proceedings that are on the Statement of Claim.
In the Notice of Motion form under the heading 'Affidavit' you need to say:
If you are asking for payment for the value of the goods, you should also include:
You will have to 'swear' and sign the affidavit in front of a Justice of the Peace (JP) or a lawyer, who will also have to witness your signature.
For detailed instructions, see
Instructions for filling out a Notice of Motion - Default Judgment for Detention of Goods.
To look at a completed form, see
Sample Notice of Motion - Default Judgment for Detention of Goods.
For more information on signing affidavits, see
Your application for default judgment can be for:
You should get
legal advice before deciding which you want to ask for and applying for default judgment.
If your application for default judgment is for the return of goods only, or for the value of the goods only, you can later apply to the court to change the order. For example, if you got judgment for the delivery of the goods only, and the goods were destroyed before they were delivered to you, you may be able to apply to the court to have the judgment changed to the value of the goods.
This topic only deals with default judgment for return of the goods or payment for the value of the goods. It does not deal with damages for loss of use of the goods, which you may also be able to claim if you lost income because you did not have the goods. If you want to claim damages you should get
The final step is to take or send the Notice of Motion and the Affidavit of Service to the Local Court where the Statement of Claim was filed.
You must file the Notice of Motion within 14 days of swearing the affidavit.
You should apply for default judgment within nine months of filing the Statement of Claim. The court may dismiss your claim after nine months if you and/or the defendant have filed nothing further in the case.
You don't have to file any extra copies but if you want sealed (stamped) copies for your records you need to file copies as well as the originals. The court will return the copies to you.
There is no filing fee for the Notice of Motion and the Affidavit of Service and you do not have to serve copies on the defendant.
The registrar at the Local Court will either grant or refuse your Notice of Motion applying for default judgment without a hearing. You will not have to attend court.
If you are seeking payment for the value of the goods instead of their return, you may have to attend court. The court has to decide what the goods are worth, and may do this in chambers (by looking at the evidence provided by you without the need for a hearing) or in a hearing that you will have to attend.
For more information, see
Assessment hearing - Step by step guide.
In most instances, the court will enter a default judgment for the detention of the goods if the Notice of Motion and Affidavit of Service show:
Once you have a default judgment you can enforce the judgment against the defendant. For more information on enforcing a default judgment, see
Enforcing a judgment.
The defendant can apply at any time to set aside a default judgment. For more information, see
Responding to an Application to Set Aside Default Judgment.