Default Judgment in Victoria: Can It Be Set Aside?
A default judgment does not always mean your case is over.
Shawn Mendis Lawyers recently appeared in the Magistrates’ Court of Victoria for Defendants who had a default judgment entered against them.
We successfully asked the Court to set aside the judgment and allow the Defendants to file their Defence.
To protect client confidentiality, no names, dates, amounts or identifying information are included.
What is a default judgment?
A default judgment may be entered when a person receives a Court complaint but does not file a Notice of Defence within the required time.
The Court may enter judgment without hearing that person’s side of the story.
The plaintiff may then take enforcement action, which can include:
- Obtaining a warrant to seize property.
- Taking money from a bank account.
- Taking money from wages.
- Requiring the person to attend Court for examination.
How long do you have to file a Defence?
If a Magistrates’ Court complaint is served on you in Victoria, you will normally have 21 days from the date of service to file and serve a Notice of Defence.
The Notice of Defence must be:
- Filed with the Magistrates’ Court.
- Served on the plaintiff at the address shown in the complaint.
You should carefully check the complaint because a different period may apply in some situations or where the Court has made another order.
If you miss the deadline, the plaintiff may apply for default judgment without giving you any further notice.
What is an affidavit of service?
An affidavit of service is a sworn document explaining how Court documents were delivered to a person. It usually records who served the documents, what documents were served, the date and time of service, the address and the identity of the person who received them. The Court may rely on this affidavit when deciding whether the defendant was properly served and whether default judgment can be entered.
If there is a disagreement about service, the affidavit should be checked carefully against what actually happened.
A simple example
John receives a Magistrates’ Court complaint claiming that he owes money.
John believes he does not owe the money, but he is confused by the documents and does not file a Defence within 21 days.
The other party obtains a default judgment and begins enforcement action.
John immediately obtains legal advice. His lawyer applies to the Court and explains:
- Why John did not respond within the required time.
- How quickly John acted after discovering the judgment.
- Why John has a genuine Defence.
- Whether the complaint was properly served.
- Why it would be fair for the Court to hear both sides.
If the Court grants the application, the default judgment may be set aside. John can then file his Defence, and the case will continue through the normal Court process.
This is a general example and is not based on any particular client.
What did we achieve?
In our recent matter, we carefully reviewed:
- The complaint and statement of claim.
- The affidavit of service.
- The application for default judgment.
- The supporting affidavits.
- The judgment and enforcement documents.
- The proposed Defence.
We identified important questions about the procedure used to obtain the judgment.
We also demonstrated that:
- The Defendants had a reasonable explanation for the delay.
- Their failure to file a Defence was not deliberate.
- They acted promptly after becoming aware of the judgment.
- They had a genuine and arguable Defence.
- The dispute should be decided after both parties had an opportunity to present their evidence.
The Court accepted our submissions, set aside the default judgment and gave the Defendants permission to file their Defence.
This restored their opportunity to have the dispute properly heard.
How can a default judgment be set aside?
A defendant may ask the Magistrates’ Court to set aside a default judgment under Rule 21.07 of the Magistrates’ Court General Civil Procedure Rules 2020.
The defendant may also ask for permission under Rule 8.02 to file and serve a Notice of Defence after judgment has been entered.
The application will normally require affidavits explaining:
- What happened.
- Why the Defence was not filed within 21 days.
- When the defendant became aware of the judgment.
- What action the defendant took after discovering the judgment.
- The legal and factual basis of the proposed Defence.
- Any concerns about service or the procedure used to obtain judgment.
What will the Court consider?
The Court may consider:
- Whether the complaint was properly served.
- Whether the correct default judgment procedure was followed.
- Whether the defendant reasonably explained the delay.
- Whether the application was made promptly.
- Whether the proposed Defence is genuine and arguable.
- Whether either party would suffer unfair prejudice.
- Whether setting aside the judgment would be fair.
The Court does not usually decide the entire dispute during this application. It decides whether the defendant should be allowed to file a Defence and have the case determined through the normal Court process.
Act quickly
Do not ignore a Magistrates’ Court complaint, default judgment or enforcement notice.
If you receive Court documents, obtain legal advice immediately. Waiting may reduce your available options and make it more difficult to set aside the judgment.
You should collect:
- The complaint and statement of claim.
- Any Notice of Defence provided with the complaint.
- The affidavit of service.
- The default judgment.
- Any warrant or enforcement notice.
- Relevant contracts, emails, messages and payment records.
- Evidence explaining why the Defence was not filed on time.
How Shawn Mendis Lawyers can help
Shawn Mendis Lawyers assists individuals and businesses with:
- Applications to set aside default judgments.
- Preparing and filing Notices of Defence.
- Debt and contract disputes.
- Warrants to seize property.
- Magistrates’ Court proceedings.
- Civil and commercial litigation.
We provide clear and practical legal advice. We carefully examine the Court file, service documents, evidence and available Defence before appearing for our clients.
Every case is different, and no particular result can be guaranteed. Obtaining advice early can help protect your rights and improve your available options.
Speak with a Victorian civil litigation lawyer
If a default judgment has been entered against you, contact Shawn Mendis Lawyers as soon as possible.
Shawn Mendis
Principal Solicitor
Shawn Mendis Lawyers
198 Henry Road, Pakenham VIC 3810
Phone: 03 8774 9663
Email: contact@shawnmendislawyers.au
Website: www.shawnmendislawyers.au
