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If there is a default judgment against you and you want to defend the claim, you can apply to set aside the default judgment. To make an application, follow these steps.
You may not have full details of the case and default judgment against you, for example because you only found out about it when the sheriff came to your house or money was missing from your bank account. You can contact the Courts Call Centre on 1300 679 272 and ask them to tell you the amount of the judgment and the date it was made. You should also ask for a copy of the statement of claim, if you don't already have one.
You will need two forms:
Form 40 - Affidavit.
You can get copies of the forms from:
Uniform Civil Procedure Rules (UCPR) website.
You can also complete and file these forms online using the
NSW Online Registry.
You can fill out your forms:
The notice of motion should:
The affidavit should:
You need to sign the affidavit under the heading 'Signature' and under the heading 'Affidavit'. You need to make an oath or affirmation and sign it in front of a lawyer or Justice of the Peace (JP). If the affidavit section of the form is on more than one page, you and the witness must sign the bottom of each page.
Instructions for filling out an affidavit in support of a notice of motion to set aside a default judgment.
The notice of motion and the affidavit need to be filed at the same court where the statement of claim was filed and the default judgment entered. It is a good idea to attach a draft of your defence to your affidavit.
You must file your notice of motion within 14 days of signing it. There is no filing fee in the small claims division.
You will need to file the original plus a copy of the notice of motion and affidavit. The court will keep the original and give you back the stamped copy. You will then need to make a copy of the documents and serve them on the plaintiff or their lawyer.
When you file the documents, the court will give you a hearing date. The court will then send the plaintiff a 'Notice of Listing'. This is a letter informing them of the notice of motion and the date, time and place of the hearing.
At the hearing the registrar or magistrate will consider your notice of motion and affidavit and any submissions from you and the plaintiff.
You might find it useful to make notes about what you want to say at the hearing. You can tell the court:
If the court did not set aside the default judgment, the plaintiff can continue to enforce the judgment. You can apply to have that refusal reviewed by a magistrate. You must do this within 28 days of the decision. For more information, see
Appeals and reviews.
There is no limit on the number of times you can apply but generally the court will only make a different decision if you have new information or evidence. Before asking for a review, you should get
If the court sets aside the default judgment, the registrar will make orders for you to file a defence within a certain time (usually within 14 days). If you do not follow these orders the plaintiff can apply to have the judgment re-entered.
For more information on filing a defence, see
Filing a defence.
If the court finds that the failure to file a defence within 28 days is your own fault, the court will normally order you to pay the plaintiff's 'costs thrown away'. This is the cost of them attending the hearing, as well as the cost of any enforcement action they may have already taken.
If you are able to prove that you did not receive the statement of claim or that the plaintiff did not serve it properly, the plaintiff may be ordered to pay your costs.
The court may instead order: