Author: By Lawyers For Lawyers
The conduct of a Supreme Court proceeding followed sequentially from settling it early to going to court.
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The court may set aside default judgment which has been regularly entered, under r. 21.07, (and only refrains from doing so in exceptional cases: (see e.g. Collins Book Depot Pty Ltd v Bretherton [1938] VR 40) where the defendant has:
If judgment was regularly entered, the court will order the defendant to pay the plaintiff’s costs of entering default judgment thrown away. If the judgment was irregularly entered, the plaintiff is likely to have costs awarded against him.
Application to set aside default judgment is made by filing an application in the proceeding seeking an order to set aside the default judgment pursuant to r 21.07.
The application must be supported by an affidavit which annexes a draft defence and in which the deponent sets out the reasons for the failure to file the appearance or a defence within the time limited by the rules. Merely saying that the client has a defence on the merits is insufficient. It must be demonstrated, and the way of doing it is to annex a defence that will be filed if the court exercises its discretion in favour of the client.
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