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If default judgment has been entered against you personally, or your company you should get immediate legal assistance from a lawyer who is experienced in litigation.

How to Set Aside Default Judgment

There can be numerous circumstances where a person finds themselves in the predicament of failing to enter a defence in a proceeding. Despite any excuse the defendant has, failing to enter a defence can result in the plaintiff filing an application for default judgment.

If default judgment is awarded against the defendant, the defendant must apply to set aside the judgment and to have time to put in a defence.  Needless to say, the applicant must have a good reason as to why the default judgment should be set aside. Let’s look at the criteria that must be satisfied to be successful in setting aside default judgment, below.

The Criteria to Set Aside Default Judgment

Cook v DA Manufacturing Co P/L and Anor [2004] QCA 52 (Cook v DA) sets out the criteria that the Court will consider when a defendant is applying to set aside the judgment, including whether:

  • there is a satisfactory explanation for the failure to appear;
  • there has been no unreasonable delay in bringing the application; and
  • the defendant has a prima facie defence on the merits.

In Cook v DA, when referring to National Mutual Life Association of Australia Ltd v Oasis Developments Pty Ltd [1983] Qd R 441, McPherson J indicated that the requirement for the defendant to have a prima facie defence is the most cogent to consider.

Although the Court will consider the three-point above, it is important to note that the Court has a wide discretionary power to set aside a default judgment, as per the High Court  finding in Taylor v Taylor (1979) 143 CLR 1 where the Court said:

A jurisdiction to set aside its orders is inherent in every court unless displaced by statute. In my opinion the jurisdiction extends not only to the setting aside of judgments which have been obtained without service or notice to a party (Craig v. Kanssen [24] ) but to the setting aside of a default or ex parte judgment obtained when the absence of the party is due to no fault on his part.