Default and summary judgments

The Uniform Civil Procedure Rules 1999 (UCPR) provide for a number of ways that a civil matter might come to an end without going to trial where the defendant has not filed a defence or a viable defence.

This factsheet is designed to set out a number of these, in particular default and summary judgments.

1. Default judgment

Obtaining a default judgment

If a plaintiff files and serves a claim and a defendant does not file a notice of intention to defend within 28 days of being served, the plaintiff can obtain a default judgment from the court under rule 281 of the UCPR.

If the plaintiff’s claim is for a debt or liquidated demand then the default judgment will set out the amount that the defendant has to pay. To obtain a default judgment for a debt or liquidated demand, the plaintiff must demonstrate that the claim was properly served upon the defendant (rule 282).

If the claim is for unliquidated damages the court must still assess the damages that the plaintiff is entitled to (rule 284).

In the District and Supreme Courts, a Registrar goes through the documents quite thoroughly before granting a default judgment to check that the UCPR has been complied with. The Registrar does not consider the merits of the plaintiff’s claim against the defendant in deciding whether or not to grant default judgment (rule 283(10)).

The UCPR allow a plaintiff’s lawyer to give “hearsay evidence” to a Registrar in order to obtain a default judgment (rule 430(2)). This means that usually a plaintiff’s lawyer will file an “affidavit of debt” in which they swear or affirm that their client has told them that the debt is owed and outstanding.

To obtain a default judgment for a liquidated demand or debt you need to complete a Form 25 request for default judgment and you will need to swear an affidavit of debt, using a form 46 affidavit. You will also need an affidavit of service from the person who served the defendant with the claim and statement of claim. Forms can be accessed here.

I have been served with a default judgment – What can I do?

You should contact the Registry of the court and obtain a copy of the request for default judgment and the affidavit of service that were relied on by the plaintiff to get the default judgment. All court forms give the registry and file number for the case.

Under rule 290 you may apply to the court to set aside a default judgment.

This can be attempted by filing a Form 9 Application together with a Form 46 Affidavit.

There are two grounds on which a default judgment may be set aside.

First, you might be able to satisfy the court that the judgment was obtained irregularly. Irregularity means that the plaintiff hasn’t complied with the UCPR or that there is a defect in the judgment.

Examples of an irregularity are:

1. 1. 1. That the defendant was not served with the proceedings in accordance with the UCPR; or
      2. That the amount claimed does not take into account payments made by the defendant to reduce the debt.

If you want to argue that you were never served with the claim and statement of claim, it is not enough for you to swear an affidavit that you were never served.

You need to be able to present independent evidence that rules out the possibility that you were served. Usually, this will involve evidence that shows your whereabouts at the time that the affidavit of service says you were served.

For example, Jenny is applying for a default judgment to be set aside. The plaintiff has filed an affidavit of service swearing that Jenny was served with the Claim on 10 March at 3 pm in her house at Fortitude Valley.

Jenny files an affidavit that says that she was not at her home at that time. She was out shopping with her children at the time. Jenny presents no evidence to support this.

Without further evidence, Jenny’s application is unlikely to succeed.

Alternatively, Jenny files an affidavit in support of her application that includes a speed camera photograph taken at 2:50 pm on 10 March on the Gold Coast Highway at Currumbin.

This would be very strong evidence in support of Jenny’s application, because it would not physically be possible for her to have been at her house at Fortitude Valley at 3 pm, if she was at Currumbin at 2:50 pm.

Alternatively, Jenny might be able to produce her work diary that shows that she was working at Surfers Paradise on 10 March, together with electronic records that show she swiped into her workplace at 9 am and left at 6:10 pm. Her appointment diary also indicates that she had a client appointment from 2:00 pm – 4:00 pm.

Second, even if the default judgment was properly obtained the court can still set aside a default judgment. There are three things that you must satisfy the court of:

1. 1. 1. A reasonable explanation for the failure to file a defence;
      2. That there has been no delay in your bringing your application; and
      3. A prima facie defence on the merits: National Mutual Life Association of Australasia Ltd v Oasis Developments Pty Ltd [1983] 2 QdR 441.

It is important in explaining a failure to file a defence that you be honest with the court.

To establish a prima facie defence on the merits, you will need affidavit material to substantiate the grounds on which you are seeking to defend the claim. This is a very important difference with the normal drafting of a defence, as you need to present the actual evidence that you will seek to rely on in your defence.

Before applying to have a default judgment set aside you should think seriously about whether or not you do have a defence to the substantive claim against you. If the other party is legally represented they are likely to incur considerable costs in resisting the application.

You should prepare a defence that you are seeking to file so that the proceedings are able to continue, and exhibit this to your affidavit.

The court’s power to set aside a default judgment is discretionary. If a judgment has been regularly entered, the court will often make an order that the defendant pay the plaintiff’s costs “thrown away” by obtaining the default judgment: Challis v O’Brien [1956] QWN 39. This puts both the plaintiff and the defendant back in the position they were in before the default judgment was obtained.

If you are the defendant in proceedings, you cannot obtain a default judgment on a counterclaim Aust Investment Corp (Holdings) Ltd v Markway Holdings Pty Ltd [2002] QSC 305.

2. Summary judgment

Rule 292 of the UCPR allows a plaintiff to apply to the court for judgment if the defendant has “no real prospect” of defending the claim and that a trial is not necessary to resolve the dispute between the parties.

Rule 293 of the UCPR similarly allows a defendant to apply to the court for judgment if the plaintiff has “no real prospect” of establishing the claim.

You can file an application for summary judgment at any time after a notice of intention to defend has been filed (rules 292 and 293).

A high threshold is needed to satisfy the court that summary judgment should be granted. Essentially, you need affidavit evidence supporting the allegations of fact that you make against the other party.

An application for summary judgment must be served at least 8 business days before it is set down for hearing. The material in response to a summary judgment application must be filed at least 4 business days before the hearing.

If you are responding to an application for summary judgment you should:

1. 1. 1. File affidavit material that substantiates your case;
      2. Use the best evidence that you can to support your case; and
      3. Identify and highlight disputes of fact between the parties.

If there are disputes of fact between the parties, the courts are often reluctant to grant summary judgment.

3. Other forms of early resolution of cases by the courts

In addition to summary and default judgments, the UCPR provides a number of other ways that a case can be resolved by a court without going to full trial.

1. 1. 1. The matter may be deemed resolved under the Caseflow Management Scheme.
      2. If a defendant does not turn up to the trial on the due date, the court can hear the plaintiff’s case and grant judgment against the defendant (rule 476).
      3. The court can sometimes make an order for “security for costs” and security for damages, that is, it can order a company bringing proceedings (or in some cases an individual), to provide evidence that it could meet a potential costs order before it can continue an action (Chapter 17).