A default judgment is entered without the merits being examined. The National Court Rules 1983 therefore give the Court a broad power to undo it.
Rules 8 and 35
The Court may, on such terms as it thinks just, set aside or vary a judgement entered in pursuance of this Division.
(2) The Court may, on terms, set aside or vary a judgement —
(a) where the judgement has been entered pursuant to Order 12 Division 3 (default judgement); or
(b) where the judgement has been entered pursuant to a direction given in the absence of a party, whether or not the absent party had notice of trial or of any motion for the direction; or
(c) where entered in proceedings for possession of land pursuant to a direction given in the absence of a person, and the Court decides to make an order that the person be added as a defendant.
(1) The Court may also set aside or vary a direction for entry of judgement where notice of motion is filed before entry.
(5) This Rule does not affect any other power of the Court to set aside or vary a judgement or order.
Rule 35 is specific to Division 3; Rule 8(2)(a) covers the same ground. Either may be cited, and in practice both are — along with Order 12 Rule 8(5), which preserves any other power.
Note Rule 8(2)(b): a judgment entered in a party’s absence may be set aside whether or not the absent party had notice. That is wider than the seven-day regime in Order 10 Rule 12, which applies to a verdict or finding after a trial that proceeded.
The threshold question
| Irregular judgment | Regular judgment | |
|---|---|---|
| What it means | Entered when it should not have been | Properly entered, but the defendant wants to defend |
| Examples | Entered before the time expired; defendant never served; no Rule 34 affidavits; possession entered without the Rule 30(2) affidavit; entered against a disabled person contrary to Order 5 Rule 23(1); entered after a jurisdiction motion was served | Defendant was served, did nothing, and time ran out |
| What you must show | The irregularity | Explanation, defence on the merits, and promptness |
| Supporting rule | O 1 r 8 — the Court may set aside a proceeding, step or document for irregularity | O 12 rr 8, 35 — the discretion |
An irregular judgment is attacked on the ground that the Rules were not complied with. The defendant does not have to demonstrate a good defence to establish the irregularity, though the Court’s power remains discretionary and is exercised on terms.
A regular judgment requires the defendant to ask for an indulgence, and the three matters below must be addressed.
The three matters
- Why the default occurred. A real explanation on affidavit from someone with direct knowledge — the writ was served on an employee who did not pass it on; the defendant was hospitalised; lawyers were instructed late. “Oversight” without detail is weak.
- That there is a defence on the merits. This is where most applications fail. It is not enough to assert a defence: set out the facts, exhibit the documents, and annex a draft defence. The Court is being asked to reopen a concluded judgment, and needs to see that doing so would serve some purpose.
- That the application was prompt. Time runs from when the defendant learned of the judgment, not from entry. Delay after that, particularly delay while enforcement proceeds, tells heavily against the applicant.
By notice of motion citing Order 12 Rules 8 and 35 — Rule 8 of the Motions Rules requires a concise reference to the Court’s jurisdiction, and a motion without it may be struck out for being incompetent and for lack of form.
Support it with an affidavit covering the three matters, exhibiting the draft defence, and dealing with any enforcement already taken. Serve it on the plaintiff.
“On such terms as it thinks just”
Costs thrown away — the plaintiff’s costs of obtaining the judgment and of the application, usually payable by the defendant regardless of the outcome of the case.
A defence filed within a fixed time — often days rather than weeks.
Payment into Court, or security, where the defence looks thin but arguable.
Preservation of steps already taken — the Court may set aside the judgment while leaving intact anything properly done under it.
Conditions are the price of the indulgence. A defendant should come prepared to offer terms rather than resist them.
Filing a motion to set aside does not, of itself, halt enforcement under Order 13. Where a writ of levy has issued or a garnishee order is on foot, ask expressly for a stay in the same motion.
Contrast Order 7 Rule 7(5), where service of a jurisdiction motion does freeze the plaintiff’s steps — there is no equivalent here.
Order 8 Rule 46 — a default judgment on a cross-claim may likewise be set aside or varied, on terms.
Order 8 Rule 59 — the slip rule corrects a clerical mistake or accidental slip in the minute, at any time. That is a different remedy: it corrects the record rather than reopening the judgment.
If the judgment stands and you disagree with the refusal to set it aside, the remaining route is an appeal under section 14 of the Supreme Court Act (Chapter 37).
Sources
- National Court Rules 1983 — O 1 r 8; O 5 r 23; O 7 r 7; O 8 rr 46, 59; O 10 r 12; O 12 rr 8, 30, 34, 35, Div 3; O 13; Motions Rules r 8
- Supreme Court Act (Chapter 37) — s 14
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.