Please note: Articles on this website were originally published by CourtKeys.com in 2015 and may now be out of date. Revised and updated content is included in Civil Litigation for Non-Lawyers [available here]. Disclaimer
On this page:
- District Court judgment by default
- Automatic judgment or formal proof hearing?
- What is a “liquidated demand in money”?
- Formal proof hearings
This part of this text deals with the situation where a defendant does not defend a claim.
Judgment by default becomes available when a defendant fails to file and serve a defence within the time for doing so. It can mean that you win your case simply by filling out an application form, making an affidavit of service and paying a $90 fee.
Rule 15.4 of the District Court Rules 2014 provides:
Before judgment by default can be sealed, there must be filed –
(a) an affidavit of service of the statement of claim and notice of proceeding; and
(b) if the statement of claim and notice of proceeding have not been served personally on the defendant or on a solicitor accepting service on the defendant’s behalf, an affidavit verifying the statement of claim.
See the part of this text dealing with proof of service for more, as well as an affidavit of service template.
Automatic judgment or formal proof hearing?
You application for judgment by default might be automatically granted where:
1. You are entitled to file for judgment by default because the defendant has failed to file and serve a defence within 25 after the statement of claim, notice of proceeding and list of documents was served; and
2. The claim is for a “liquidated demand in money” in accordance with rule 15.7 of the District Court Rules 2014.
What is a “liquidated demand in money”?
Rule 15.7(5) of the District Court Rules 2014 provides:
For the purposes of this rule and rule 15.9, liquidated demand means a sum that –
(a) has been quantified in, or can be precisely calculated on the basis of, a contract relied on by the plaintiff; or
(b) has been determined by agreement, mediation, arbitration, or previous litigation between the same parties; or
(c) is a reasonable price for goods supplied or services rendered (when no contract quantifies the price).
So, for example, where you have loaned $50,000 to Mr Jones and he has failed to repay it as agreed you would have a ‘liquidated’ claim for the $50,000 or whatever lesser amount on account of payments made by Mr Jones to partially reduce the debt.
An example of an ‘unliquidated’ demand in money could be where you are claiming some form of punitive or ‘exemplary’ damages for outrageous conduct causing harm. The District Court would have to assess the evidence in such a case and make a decision on whether such damages ought to be awarded and to what extent if so. That assessment could only be made upon a ‘formal proof’ hearing of the evidence.
Formal proof hearings
A formal proof hearing is normally convened where:
1. The defendant has failed to file and serve a defence within the time for doing so; and
2. The claim is not for a liquidated demand in money.
A formal proof hearing is like a trial without a defendant. Defendants might be allowed some limited right to participate in some circumstances but formal proofs often proceed without them. The point of a formal proof is to put the judge in a position to make a ruling. That means calling witnesses and producing evidence just as you might do in a defended trial.
Briefs of evidence might be called for, as might bundles of documents, experts and synopses of submissions. You might expect the court to convene a case management conference to discuss requirements for a formal proof hearing of your particular case after you file for judgment. See those parts of this text dealing with case management conferences, synopses of submissions, briefs of evidence, bundles of documents, and trials for more.
Note: This content was originally published by CourtKeys.com in 2015. Disclaimer