What is a Default Judgment?

Default Judgment is a judgment entered against a party who has failed to defend an action which has been brought against them.

 

In a legal action by a way of summons, there are two parties:

  1. The Plaintiff- the one who institutes the proceedings.
  2. The Defendant- the one who has to defend the action (relief is sought against him).

 

Where the Defendant fails to defend an action which has been brought against him, the court is entitled to reasonably assume that he does not wish to dispute the claim, nor does he dispute the claim of the Plaintiff. In such instances, the court will grant an order in favor of the Plaintiff (based on what the Plaintiff claimed in his summons).

 

Instances in which Default Judgment may be sought or granted:

  • The Defendant failed to serve and file Notice of Intention to Defend.
  • The Defendant delivered the Notice of Intention to Defend but failed to serve and file a Plea.
  • The Defendant has entered into a defective entry of Notice of Intention to Defend.

 

The Procedure:

  • The Plaintiff lodges a written request for Default Judgment if the Defendant failed to serve and file Notice of Intention to defend.
  • The above mentioned request must be in duplicate.
  • The original summons, sheriff’s return of service and documents which the cause of action is based on must accompany the request.
  • The request must reflect the correct case number.
  • The Plaintiff is only allowed to claim the amount which is reflected in the summons, plus costs and interest.
  • In cases where the Defendant delivered a Notice of Intention to Defend but failed to serve and file a Plea, the Plaintiff may deliver Notice of Bar calling the Defendant to deliver a Plea within 5 days- failing which the Defendant will be barred from serving and filling a Plea and a Default Judgment may be entered into.

 

The Process:

  • The Magistrate endorses the request that Default Judgment is granted.
  • In the event where Notice of Intention to Defend was defective in that:
  • It was not properly delivered or signed.
  • Does not set out an address within 15 km radius.
  • Default Judgment may not be entered into where summons were served via registered post, unless there is acknowledgement of receipt.

 

 

Setting aside Default Judgment:

Default Judgement may be set aside in two circumstances:

  1. Consent – the Plaintiff (whom Default Judgment favors) may consent for it to be set aside.
  2. The Defendant can bring an application setting out the grounds which he seeks to have the judgment set aside.

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