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Making an Application to Set Aside Judgement (factsheet)

This fact sheet is for information only. It is recommended that you get legal advice about your situation.

Download our printer friendly version here (PDF): Set Aside Judgment

CASE STUDY

Joni was distressed when the sheriff knocked on her door wanting to take her furniture. Joni asked the sheriff what had happened. The sheriff said that there was a judgment against her and the court had issued a writ of levy of property so the sheriff could seize Joni’s goods. The sheriff told Joni to contact the local court for more information. The sheriff tagged Joni’s TV, stereo and washing machine and wrote down some details and then left.

Joni was sure she did not owe any debts to anyone!

Sometimes, the first you will hear that there is a judgment against you is when the Sheriff turns up at your door. This can happen when a Statement of Claim (official document used to start court proceedings) was:

  • Sent to your old address (and the mail was not forwarded to you)
  • Served (given to) on someone at your old address
  • Served on someone at your current address but s/he did not give it to you
  • Not served on you at all as the plaintiff (the person taking legal action against you) obtained permission from the Court not to have to serve you or to serve someone else instead (such as a relative believed to be in contact with you).

You can see what a Statement of Claim (Form 3B) looks like at www.lawlink.nsw.gov.au and following links to ‘court forms’ or by searching the internet for ‘UCPR Forms’

IMPORTANT: If you do not respond to the court within 28 days of being served the Statement of Claim, the plaintiff can obtain a default judgment against you.

HOW CAN I CHECK IF THERE IS A JUDGMENT AGAINST ME?

The first thing you need to do is ring NSW courts on 1300 679 272 and check if there is a judgment against you and get the details of that judgment. If there is no judgment against you get legal advice immediately (see Factsheet: Getting Help).

The next step is to get a copy of the following documents from the Court or the plaintiff:

  1. Copy of the Statement of Claim filed in the Court. Make sure that the copy you get has been stamped by the Court.
  2. A copy of the judgment by the Court

If there is a judgment against you, you should also ask the relevant court whether there is an affidavit of service on the court file. This will tell you where the Statement of Claim was sent or who, if anyone, it was given to, that is, how and when you were given or sent the Statement of Claim.

CAN I GET A DEFAULT JUDGMENT SET ASIDE?

You may be able to apply to the court to have the judgment set aside but you will have to explain to the court:

  1. Why you failed to lodge a defence or did not attend court;
  2. That you do in fact have an arguable defence; and
  3. Any other reasons why it would be just or fair for the court to reopen the proceeding.

Depending on why the judgment occurred, you may have to pay the plaintiff’s court costs.

If you do not have a defence to the debt then it is unlikely you will be able to have the judgment set aside.

HOW DO I GET A JUDGMENT SET ASIDE?

STEP 1:

Get legal advice on your defence. The defence must be good enough to convince the Court that your case is worth hearing. See Factsheet: Getting Help and Fact Sheet: Filing a Defence for further information.

IMPORTANT: It is important to get legal advice because of the risk of costs. The court can make costs orders ordering one party to pay the legal costs of the other arty, according to what the court sees as fair. (For instance, ordering the losing oarty to pay the legal costs of the winning party)

Court fees and legal costs increase with the higher level of the court, so they would be higher in the Supreme Court than in the Local Court.

STEP 2:

Obtain the following forms (can be found at www.lawlink.nsw.gov.au follow the links to ‘court forms’ or search the internet for ‘UCPR Forms’):

  1. Notice of Motion (Form 20)
  2. Affidavit (Form 40)
  3. Defence (Form 7B)

You can also pick up a copy of the forms from your nearest NSW court.

STEP 3:

Complete these three forms.

HOW DO I COMPLETE A NOTICE OF MOTION TO SET ASIDE JUDGMENT AND FOR STAY OF PROCEEDINGS?

NOTICE OF MOTION

In your Notice of Motion you should request:

  1. The default judgment be set aside,
  2. A stay on enforcement until the set aside application is determined, and
  3. Costs of the motion are costs in the cause (asking for costs in the cause means you are asking the court to postpone its decision about costs until the end of the whole case).

AFFIDAVIT IN SUPPORT OF NOTICE OF MOTION

You will need to file an Affidavit (Form 40) to support your Notice of Motion. This can be found at www.lawlink.nsw.gov.au, follow the links to ‘court forms’ or search the internet for ‘UCPR Forms’.

  • Completing the section titled: The reason why a defence was not filed within 28 days of the service of the summons.

Give the reasons why you did not file your defence within 28 days of receiving the Statement of Claim.

For example, your reasons could be:

  1. At the time of the service of the Statement of Claim I was living at 10 Smith Street Penrith
  2. I had been living at this address for the past 5 years
  3. The Statement of Claim was sent to my former address at 10 Smith Street Summer Hill
  4. I first found out about the court proceedings when the sheriff came to my house on [date].

You should also explain any delays between you finding out about the court proceedings and when you put in your application to set aside the judgment.

  • Completing the section titled: The reason why I say I have a valid defence to this action

You should describe in detail your defence. It can also help to attach any supporting evidence you have to your Affidavit and attach a draft defence which would be the defence you would file if judgment was set aside.

For example, your defence could be

  • The debt claimed by the plaintiff is not owed.
  • I repaid the debt to the plaintiff by cheque on [date].

If there are any other reasons why you believe it would be fair for the court to set aside the judgment and reopen the case, you should also add this into your Affidavit.

STEP 4:

Lodge the forms with the Court where judgment was obtained as soon as possible. You will need to serve a copy of the documents lodged with the other parties.  The court will then set down a time and date for you to attend to argue your motion.  The plaintiff may file and serve their own evidence if they object to your application to set aside the judgment.

If your application is successful, the court will then set down a timetabel to move the matter to a hearing of the main issues (i.e. whether you owe a debt to the plaintiff, whether your defence is valid)

NEED SOME MORE HELP?

See Fact Sheet: Getting Help for a list of additional resources.

Last Updated: February 2017