Default judgment is largely an administrative act, but it is conditional. Order 12 Rule 34 of the National Court Rules 1983 sets out what must be proved first.
Rule 34
Judgement shall not be entered against a defendant under this Division unless —
(a) an affidavit is filed by or on behalf of the plaintiff proving due service of the writ of summons or notice of the writ on the defendant; or
(b) the plaintiff produces the writ of summons endorsed by the defendant’s solicitor with a statement that he accepts service of the writ on the defendant’s behalf,
and an affidavit is filed by or on behalf of the plaintiff proving the default of the defendant on which the plaintiff relies.
The word “and” before the final limb is decisive. Proof of service is not enough; the default itself must also be proved on affidavit.
The default affidavit should identify which limb of Rule 25 is relied on — no notice of intention to defend, no defence, or an unverified defence — state the date service was effected, state the time limited, and depose to a search of the Court file showing nothing was filed.
Paragraph (b) is the alternative to a service affidavit: the writ itself, endorsed by the defendant’s solicitor accepting service. That reflects Order 6 Rule 8.
Under Order 6 Rule 18 an affidavit of service must state by whom the document was served, the day of the week and the date, and the manner of service. Where the defendant is a company, identify the paragraph of section 431 of the Companies Act 1997 relied on; where it is the State, the officer served under section 7 of the Claims By and Against the State Act 1996 and the time.
Defective affidavits of service are the commonest reason default judgments are later set aside. See proving service.
The two routes
| Claim | Route |
|---|---|
| Liquidated demand; unliquidated damages; detinue; possession of land; or a combination of those and nothing else | Enter judgment — rr 27–31 |
| Any other combination of claims | Apply to the Court under r 32(1) |
| Claim satisfied, so relief is unnecessary | Judgment for costs alone — r 33 |
| Claim of a description not mentioned in the Division | Proceed as if notice had been given — r 36(1) |
(1) Whatever claims for relief are made, where a defendant is in default, the Court may, on application by the plaintiff, direct the entry of such judgement against that defendant as the plaintiff appears to be entitled to on his writ of summons.
(2) But the Court shall not direct the entry of judgement for the possession of land unless satisfied of the matters mentioned in Rule 30(2) and (4).
Rule 32 is the catch-all where the claim does not fit Rules 27 to 31 — a claim combining damages with an injunction, for instance. The judgment is measured by what appears on the writ, which is another reason the endorsement under Order 4 Rule 9 matters.
Sub-rule (2) preserves the occupier protections in Rule 30 even on an application under Rule 32.
Rule 33
(1) Where a plaintiff would be entitled to enter judgment for relief and costs, but it appears by affidavit that by reason of the defendant having satisfied the claims of the plaintiff it is unnecessary to continue the proceedings, the plaintiff may enter judgement against that defendant for costs alone.
(2) More generally, where a defendant satisfies the claims or complies with the demands of the plaintiff, or for some other reason it becomes unnecessary to continue, but the defendant is in default, the Court may, on application, direct the entry of judgement for costs.
(3) Order 6 Rule 14 (service by filing) does not apply to service of notice of a motion under sub-rule (2).
Where a defendant ignores the writ, then pays up before judgment, the plaintiff is left out of pocket for the costs of the proceeding. Rule 33 allows judgment for costs alone.
Note sub-rule (3): the motion must actually be served — the convenience in Order 6 Rule 14, under which filing operates as service on a defendant in default, is disapplied. The same exclusion appears in Rule 36(3).
Rule 36
(1) Where a writ is endorsed with a claim of a description not mentioned in this Division and the defendant has not given notice of intention to defend, the plaintiff may, after the time limited and on filing an affidavit proving due service, proceed with the action as if that defendant had given notice of intention to defend.
(2) Where such a claim has become unnecessary because the defendant satisfied it or complied, the plaintiff may, after the time limited, apply by motion for leave to enter judgement for costs.
For claims outside the Division — a declaration, an injunction, an account — there is no default judgment. Instead the plaintiff simply proceeds as though the defendant had entered the fray, and must prove the case at trial.
The defendant’s silence gains the plaintiff nothing except that the matter is undefended. Judgment still depends on evidence. See what happens at trial and absence from trial.
- Was the defendant properly served, and can you prove it?
- Has the time limited on the writ actually expired — counting under Order 1 Division 3?
- Is the defendant a disabled person, so that Order 5 Rule 23(1) bars any step?
- Has a jurisdiction motion been served, freezing the proceeding under Order 7 Rule 7(5)?
- Is the defendant the State? See default judgment against the State.
Sources
- National Court Rules 1983 — O 1 Div 3; O 4 rr 9, 14; O 5 r 23; O 6 rr 8, 14, 18; O 7 r 7; O 12 rr 25–36
- Companies Act 1997 s 431; Claims By and Against the State Act 1996 s 7
Before relying on anything here, read the current text of the National Court Rules 1983 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.