WEEK 8 – Default Judgment – Discontinuance Without Trial PDF

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WEEK 8 – Default Judgment – Discontinuance Without Trial...

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WEEK 8 – DEFAULT JUDGMENT – DISCONTINUANCE WITHOUT TRIAL DEFAULT JUDGMENT  This is where the D has not filed an intention to defend and defence within the 28 days  R 281 o The mechanism of the default judgment is based on the rationale that the D has indicated by its actions that it is unable or unwilling to contest the proceedings in a trial on the merits. In those circumstances, the rules of court assume that a fair result can achieved at a substantially reduced cost without a full trial o Traditionally:  A default judgment is easy to set aside as not given on merit TYPES OF PROCEEDINGS  There are specific rules entitling a plaintiff to default judgment in 5 types of proceedings: o Liquidated debts – r 283 o Unliquidated damages – r 284 o Detention of goods – r 285 o Recovery of possession of land – r 286 o Other claims – r 288  There is also specific rule governing default judgment in mixed claims o Mixed claims - r 287 PRE-REQUISITES NEEDED  In order to get default judgment there are some pre-requisites that need to be satisfied  Pre-requisites: o Service of claim can be proven – r 282 (and Form 25 refers to an affidavit of service)  How to prove service is effected is hard o Defendant has not filed a notice of intention to defined within prescribed time – r 281  An application (for default) to court constituted by registrar o If the plaintiff seeks an order for specified goods this goes before a judge in court – attendance in court is not required you can file supporting affidavit by regular post, you would include r 969 an express post and address so they can return to you a seal court judgment o Affidavit of debt can also be filed by post, but can only be relied on until the 5 th business day after is has been sworn – r 970 WHICH DOCUMENTS?  The documents required are: o Request for default judgment – form 25 o Affidavit of service – form 46 o Affidavit of debt – form 46 o Default judgement - form 26 LIQUIDATED DEBTS  A specific sum or capable of being calculated by reference to a scale or formula – Spain v Union Steamship Company of New Zealand  Needed for a r 283 claim for default judgment  These claims are likely to appear under contracts, it is not a penalty amount but an amount payable under the contract

o Commercial leases; o Bank loans o ATO debts ASSESSMENT OF DAMAGES  For a r 284 claim o Damages assessed by:  The court  The registrar or  A lower court – r 507 o Assessment conducted as nearly as possible to a trial o R 509 - Court may give directions about conduct of assessment including use of disclosure and pleadings o Certificate of damages issued – r 511(1) SETTING ASIDE A DEFAULT JUDGMENT  For example if a large corporation has been served with claim and lost in the system somewhere so then there is no intention to defend and defence filed in the required time – so it got lost in someone’s in tray some-where, so the court does not want to unfairly penalise people if they did not purpose obstruct litigation  Wide discretion – r 290  Previously administrative act – therefore if entered irregularly must be set aside  Under the UCPR registrar acts judicially, different results? CRITERIA  Criteria where the court might refer determining whether to set aside default judgment  Unique Product Marketing Pty Ltd v Bortek Sales Pty Ltd o A satisfactory explanation as to why the D did not file a notice of intention to defend o Explanation for delay o D’s conduct in the action before and after judgment o D’s good faith o Prima facie defence o Whether plaintiff irreparably prejudiced if set aside which cannot be adequately compensated by a suitable award of costs...