How Do I Set Aside A Default Judgment?
If you’ve found yourself on the receiving end of a default judgment, it’s essential to understand your options and act quickly. While setting aside a default judgment isn’t always straightforward, it’s possible under certain circumstances, especially when you have the right guidance.
In this blog post, we’ll explain default judgments, their financial consequences, grounds for having them set aside and the process for doing so.
What is a default judgment?
A default judgment is a legal ruling in favour of the plaintiff when the defendant fails to respond to a lawsuit as required by court rules. This non-response can be due to various reasons, such as ignorance of the lawsuit, financial hardship or simply overlooking the deadline.
The consequences of a default judgment — what you need to know
A default judgment can have severe implications for the defendant. Beyond the immediate financial burden imposed by the judgment itself, it can also hurt your credit score, making it harder to apply for loans or credit cards in the future. A default judgment can also lead to wage seizure, where a portion of your income is directly paid to the plaintiff to satisfy the debt. In severe cases, assets such as the family home, property or vehicles may also be seized to cover the judgment amount, as well as result in the official bankruptcy of the defendant.
The outcome of a default judgment can be long-lasting and have a negative impact on your financial well-being. In this case, it’s crucial to take steps to protect yourself by responding to legal documents promptly and seeking legal advice from a commercial litigation lawyer.
What are the grounds for setting aside a default judgment?
To set aside a default judgment, you generally need to demonstrate two key factors to the court:
- Reasonable explanation for non-compliance — You must provide a valid reason for failing to respond to the lawsuit within the designated time frame of 28 days. This could include circumstances beyond your control, such as illness or miscommunication with your lawyer. The court will assess whether your explanation is credible and sufficient to justify setting aside the judgment.
- Defensible case — You must demonstrate that you have a genuine defence to the plaintiff’s claim. This means presenting evidence that shows you could win the case if it proceeded to trial. The court will evaluate the strength of your defence to determine if it warrants setting aside the default judgment.
The process for setting aside a default judgment — a step-by-step guide
If you believe there are grounds for setting aside a default judgment, there is a certain procedure you must follow. To give you a better insight into what this might look like, we’ve outlined the steps below:
- File an application to set aside — You must file an application and supporting affidavit evidence to the court seeking to set aside the default judgment. This application should outline your reasons for the default and explain why you believe the judgment should be set aside.
- Serve the application and affidavit evidence — You must serve a copy of the application and affidavit evidence on the plaintiff, informing them of your intention to challenge and set aside the default judgment. This ensures they have sufficient time to review your application and act within the designed time constraints.
- Attend the hearing — The court will organise a hearing to consider your application. You or your legal representation will have the opportunity to present your arguments and evidence as to why the default judgment should be set aside.
- Court decision — The court will make a decision on whether or not to set aside the default judgment. If the application is granted, the case will typically be reinstated, allowing you to defend against the plaintiff’s claim.
It’s important to act quickly when seeking to set aside a default judgment, as there are often strict deadlines in place and delays can prejudice your legal position and prospects of successfully setting aside the default judgment. Consulting with a commercial litigation lawyer can significantly increase your chances of success.
Why work with a commercial litigation lawyer to set aside a default judgment?
Navigating the legal system, especially when faced with a matter as serious as a default judgment, can be complex and overwhelming. A commercial litigation lawyer possesses the expertise to guide you through this process while upholding your best interests.
These lawyers are well-versed in the legal details regarding default judgments and can explain your rights and options in clear and understandable terms. They can also help gather evidence, construct persuasive arguments and present your case effectively in court.
In some cases, your commercial litigation lawyer may be able to negotiate a settlement with the plaintiff, potentially avoiding the need for a court hearing. And if your case proceeds to court, your lawyer will represent you, advocating for your interests and protecting your rights.
Speak to one of the commercial litigation lawyers at ADVIILAW today to resolve your matter
The financial consequences of a default judgment are not to be taken lightly. That’s why it’s crucial to take steps to protect yourself by responding to legal documents as soon as possible and seeking legal advice if you’re facing a lawsuit.
ADVIILAW is a law firm specialising in several areas of law, including Court litigation and dispute resolution. Our team is made up of brilliant commercial litigation lawyers who are driven to achieve high-quality, risk-conscious and cost-effective results for our clients. Whether you’re after tailored legal counsel, representation in court or assistance in preparing important legal documents, ADVIILAW can help.
In any matter regarding setting aside a default judgment, time is of the essence. Please do not hesitate to contact one of our experienced commercial litigation lawyers today to discuss your case.
Disclaimer
This commentary is of a general nature only, containing some general information for the reader.
It is not intended to be legal advice, nor can it be relied upon as legal advice, as each case will depend upon its own specific facts, matters and circumstances.
To this end, please kindly read our Website Terms including the disclaimer contained therein carefully. Laws, rules and principles may be subject to sudden and unexpected changes and you should always consult a lawyer about your specific circumstances before making a decision or committing to a course of action.
