Please note: Articles on this website were originally published by CourtKeys.com in 2015 and may now be out of date.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
This article 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 a judgment form, making an affidavit of service, any memorandum explaining costs and disbursements, and paying a $50 sealing fee.
Rule 15.4 of the High Court Rules 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.
Rule 15.7 of the High Court Rules provides:
(1) If the relief claimed by the plaintiff is payment of a liquidated demand in money and the defendant does not file a statement of defence within the number of working days required by the notice of proceeding, the plaintiff may seal judgment in accordance with this rule for a sum not exceeding the sum claimed in the statement of claim and –
(a) interest (if any) payable as of right calculated up to the date of judgment (if interest has been specifically claimed in the statement of claim); and
(b) costs and disbursements as fixed by the Registrar.
(2) If the plaintiff claims costs and disbursements, the plaintiff must file a memorandum setting out the amount claimed and how that amount is calculated, together with any submissions in support of the claim.
(3) A Judge or a Registrar may authorise the sealing of a judgment under subclause (1) if satisfied that the relief claimed by the plaintiff falls within this rule.
(4) A Registrar has the jurisdiction and powers of the court under these rules to fix costs and disbursements under subclause (1)(b).
[…]
Memorandum on costs and disbursements template
You can download a High Court Memorandum for Costs template here. Please note that this template relates to High Court liquidation proceedings.
Automatic judgment or formal proof hearing?
Your 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 High Court Rules.
What is a “liquidated demand in money”?
Rule 15.7(5) of the High Court Rules 2016 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
(ab) is quantified in, or can be precisely calculated on the basis of, or by reference to, an enactment 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 High 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 similar to a trial without a defendant in some ways. 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 submitting evidence and making submissions as you would in a trial or hearing.
Evidence is given, first, by affidavit in High Court formal proofs but actual examination of witnesses in the courtroom can be called for in some circumstances.
Rule 15.9 of the High Court Rules provides for formal proof:
(1) This rule applies if, or to the extent that, the defendant does not file a statement of defence within the number of working days required by the notice of proceeding, and the plaintiff seeks judgment by default for other than a liquidated demand.
(2) The proceeding must be listed for formal proof and no notice is required to be given to the defendant.
(3) After a proceeding is listed for a formal proof hearing, no statement of defence may be filed without leave of a Judge granted on the ground that there will or may be a miscarriage of justice if judgment by default is entered, and on such terms as to time or otherwise as the Judge thinks just.
(4) The plaintiff must, before or at the formal proof hearing, file affidavit evidence establishing, to a Judge’s satisfaction, each cause of action relied on and, if damages are sought, providing sufficient information to calculate and fix the damages.
(5) If the Judge before or at the formal proof hearing considers that any deponent of an affidavit filed under subclause (4) should attend to give additional evidence, the Judge may direct accordingly and adjourn the hearing for that purpose.
See those parts of this text dealing with case management conferences, synopses of submissions, affidavits, briefs of evidence and bundles of documents, and trials for more.
Note: This content was originally published by CourtKeys.com in 2015. Disclaimer