Can a Judgment Be Set Aside?

by | Court Disputes, Debt Collection

If someone gets a default judgment for a money sum against you, it means that, without a trial, a Court concluded that you got the summons but had no defence, or chose not to fight the claim.

But what if you do have a defence and overlooked responding in time?  Or perhaps the summons went astray in the service process and never got to you?

Once a judgment is entered against you, all sorts of consequences arise:

  • You might get an adverse credit report;
  • You may get a Bankruptcy Notice;
  • The creditor may apply to sell your house or to garnish your wages (a Court order that your employer pay part of your wages to the creditor);
  • The Court may summon you to explain how you will pay the judgment sum (an “Investigation Summons”).

You have the right to apply for an order setting the judgment aside.  Remember that a default judgment happens without a trial, and Judges are sympathetic to the idea of letting parties have their day in Court.

But bear in mind two matters you must give evidence about to persuade the Court to let you into the dispute and challenge the claim:

First, you must show a reasonable excuse for not defending the claim in the first place.  For example, if you can prove that the summons was never properly served, or it arrived in the mail while you were away.

Second, the Court will not set aside a default judgment solely because you want your day in Court.  You have to establish that you have an arguable defence (or off-setting claim or counterclaim), and some possibility of success.

For further information please contact Peter on 8362 6400 or email Peter Jakobsen.  Join our mailing list to receive updates and advice on current issues.

  • Peter Jakobsen

    About the author: Peter Jakobsen

    Peter has a wealth of experience in many areas of the law but practises primarily in the areas of civil and commercial litigation including employment matters, negligence, defamation, leasing and contractual disputes and debt collection.

    Peter is a skilled and clever advocate that brings all of his intelligence and significant Court room experience to each and every matter to achieve excellent results for his clients.

    Call on 8362 6400 or .

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