MAGISTRATES COURT (CIVIL DIVISION)
APPLICATIONS TO SET ASIDE DEFAULT JUDGMENTS
This notice is designed to assist persons who are not represented by a legal practitioner, who wish to apply to set aside judgments which have been entered against them where they have failed to lodge a defence or failed to attend at a directions hearing. There may be other circumstances in which this notice would have application, but not including judgments entered irregularly or which are mistaken or wrong in some way.
You must fill out an application form setting out the orders which you ask the court to make. This application has to be filed with the court and then served on the Claimant, or if the Claimant is represented by a solicitor, the solicitor.
In addition to this, you must file and serve an affidavit. The affidavit must first be sworn before a Justice of the Peace. The affidavit must contain information sufficient to demonstrate three things. These are:
1. Why you did not defend the action within the 21 days time limit. You must explain not only why you did not defend within that time, but also explain any delay which has occurred between the date the judgment was entered and the date your application is made to set aside the judgment. It is suggested that you make sure that you know what date the claim was served on you and what date the judgment was entered, before you attempt to provide this material.
2. That you have a good defence. You will need to go into some detail. You will need to set out in detail although as briefly as you can, enough facts or evidence sufficient to demonstrate that you have a good defence to the claim. There is no point just saying that you believe you have a good defence to the claim, as this is insufficient. It is also insufficient just to deny the matters set out in the claim. You must actually explain what your defence is and why it would justify setting aside the judgment.
3. That the Claimant will not be prejudiced. This is usually self-evident. Sometimes, particularly if there has been a long delay, the setting aside of the judgment may prejudice the Claimant irreversibly. You may need to provide some material setting out why you believe the Claimant would not be prejudiced by the judgment being set aside.
It is IMPORTANT that you give these matters your close attention. If an application is filed with an inadequate affidavit (or no affidavit at all) you are in danger of being ordered to pay the costs of the adjournment brought about as a result. It is usual that a defendant/applicant pay the costs on a successful application