Defence
Where the client is served with a Statement of Claim, a Defence Form 7A must be filed within 28 days: r 14.3, unless you require further and better particulars or you are making an early application for security for costs.
If that is the case ensure you have the plaintiff’s undertaking not to enter default judgment until the issues are resolved.
Defences must disclose the grounds upon which the plaintiff’s claim is denied or not admitted
When drafting a defence ensure it discloses a defence to the claim: that is we say the Defendant is not liable because of the following material facts and circumstances.
To a count in contract, a plea of “never indebted as alleged” is insufficient as a defence in that it is potentially embarrassing since it does not throw up any issue to be tried by the court: Cook Hills Investments Pty Ltd v Rodriguez (No 2) (SC(NSW) 5200 of 1986 10 December 1986, Young J; BC8600480. See precedent.
Defences of the non-admit variety or those which simply deny assertions in the plaintiff’s pleading without advancing a case of the defendant’s own, or the real issues in dispute, fall into the same category. Such pleas are likely to be struck out under UCPR Pt 14 r 28 and costs orders made pursuant to r 42.20 that the defendant pay the plaintiff’s costs in relation to those matters in respect of which the defence has been struck out.
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