Missed Your Defence? Setting Aside Default Judgment in Queensland
Being served with court proceedings can be stressful. Unfortunately, one of the biggest mistakes people make is doing nothing.
Whether through oversight, misunderstanding or believing the dispute will simply go away, failing to file a defence within the time required by the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”) can result in default judgment being entered against you.
Once default judgment has been entered, the Court has not determined whether the claim is right or wrong. Instead, judgment is entered because the defendant has failed to take the procedural steps required by the Rules. Nevertheless, the consequences can be immediate and significant.
A recent Queensland Court of Appeal decision, Johnson v Johnson, serves as a timely reminder that failing to file a defence may result in the allegations contained in a Statement of Claim being treated as admitted, with serious consequences for the conduct of the litigation.
What Is Default Judgment?
Default judgment allows a plaintiff to obtain judgment without the matter proceeding to trial where the defendant fails to file a Notice of Intention to Defend and Defence within the prescribed time.
In practical terms, it means the plaintiff may obtain judgment without the Court ever considering whether the claim is actually disputed.
For that reason, court documents should never be ignored.
What Can Happen After Default Judgment?
Once judgment has been entered, the successful party may immediately commence enforcement proceedings.
Depending upon the circumstances, enforcement options may include:
- Enforcement warrants against real property.
- Seizure and sale of assets.
- Redirection of wages or debts.
- Seizure of funds held in bank accounts.
- Statutory demands or bankruptcy proceedings where appropriate.
- Recovery of additional legal costs incurred in enforcement.
A judgment debt may also adversely affect your ability to obtain finance or credit in the future.
The longer the judgment remains in place, the more difficult and expensive it can become to resolve.
Can Default Judgment Be Set Aside?
Yes.
Rule 290 of the Uniform Civil Procedure Rules 1999 (Qld) gives the Court a broad discretion to set aside default judgment where it is appropriate to do so.
Queensland courts have long recognised that, wherever possible, disputes should be determined on their merits rather than because a party has failed to comply with a procedural requirement. However, the discretion is not exercised automatically. Each case depends upon its own facts.
What Will the Court Consider?
When deciding whether to set aside default judgment, the Court will generally consider three key questions.
1. Was There a Reasonable Explanation?
The applicant should provide a satisfactory explanation for failing to file a defence.
Circumstances such as defective service, illness, genuine misunderstanding or other reasonable explanations may justify relief. Simply ignoring the proceedings or choosing not to respond will rarely do so.
2. Was the Application Made Promptly?
Time is critical.
A person seeking to set aside default judgment should act as soon as they become aware that judgment has been entered.
Delay may prejudice the other party and can significantly reduce the prospects of the application succeeding.
3. Is There an Arguable Defence?
The Court is not deciding who will ultimately win the case.
Instead, the applicant must demonstrate a prima facie defence—that is, a genuine and arguable defence that deserves to be determined at trial.
This is commonly established through affidavit evidence outlining the factual basis of the proposed defence.
Why Acting Quickly Matters
Many people assume they can deal with the matter once enforcement action begins.
By that stage, additional legal costs may already have been incurred, enforcement proceedings may be underway, and valuable opportunities to resolve the dispute at an earlier stage may have been lost.
Seeking legal advice immediately after becoming aware of default judgment will usually provide the best opportunity to protect your position.
How We Can Help
Commercial litigation is often won or lost through the timely management of procedural issues.
We regularly advise individuals, business owners and companies in relation to:
- Applications to set aside default judgment.
- Preparing and filing defences.
- Responding to enforcement proceedings.
- Negotiating commercial disputes.
- Representing clients throughout Queensland litigation.
If default judgment has been entered against you—or you have been served with court proceedings but have not yet responded—obtaining legal advice promptly may significantly improve your prospects of protecting your legal position.
For more information about our Commercial Litigation services, visit:
Commercial Litigation: https://danethornburgh.com.au/commercial-litigation/
If you have been served with court proceedings or default judgment has already been entered, contact us as soon as possible to discuss your options:
Contact: https://danethornburgh.com.au/contact/
About the Author
Dane Thornburgh – Solicitor | Advocate
Dane Thornburgh is an experienced Queensland litigation solicitor with more than 23 years’ legal experience acting for individuals, businesses and companies in complex commercial disputes. His practice focuses on commercial litigation, contractual disputes, debt recovery, insolvency, property disputes, wills and estate litigation, and strategic dispute resolution.
Having practised both as a Solicitor and as a Barrister, Dane combines courtroom advocacy with practical commercial advice, providing clients with strategic representation from the commencement of proceedings through to trial and enforcement.
Connect on LinkedIn:
https://www.linkedin.com/in/danethornburgh
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