How to apply to set aside default judgment in the County Court of Victoria
Last updated 21 November 2024
Last updated 21 November 2024
This is a resource for people who want to set aside a default judgment of the County Court of Victoria and are not represented by a lawyer. It explains how to apply and has links to other helpful documents.
The resource contains general information only and is not intended to be legal advice.
A default judgment is an order that can be made against a defendant in a case if they have failed to respond to claims made against them.
If you have a default judgment against you it is likely to have been made in the following circumstances:
you failed to file an appearance within 10 days from the date you were served with the plaintiff’s claim
you failed to file a defence to the plaintiff’s claim within 30 days of filing your appearance
you filed a defence but it has been struck out by an order of the Court.
If you have found out that a default judgment has been entered against you and you wish to defend the claim, you can apply to have the judgment set aside. You need to act quickly.
In deciding whether to set aside the default judgment, the Court will weigh up the merits of your defence against the prejudice which may be suffered by the other party in setting aside the default judgment.
Read the following documents carefully, as they provide important information and guidance:
Copy of the default judgment order
Summons: is a document that alerts the Court and the other parties to the proceedings that you are applying to set aside the default judgment. The Summons should state the order you are asking the Court to make – for example “The default judgment dated [insert date] is set aside pursuant to Rule 21.07 of the County Court Civil Procedure Rules 2018”
Affidavit: is a document in which you will need to explain why the Court should set aside the default judgment. In the affidavit you should include all reasons you are relying upon, with each reason in a numbered paragraph. Your affidavit should contain the following:
Details of your defence to the plaintiff’s claim. This is the most important issue to address in your affidavit.
Reasons why you failed to appear when the case was heard. If you failed to file a notice of appearance or notice of defence, you will need to explain why.
If there has been any delay in applying to set aside the default judgment or launching your proceedings for a new trial, you need to explain the reasons for the delay and why the delay would not prejudice the other parties.
Exhibit: is an attachment to an affidavit. An exhibit cover sheet needs to be completed for each exhibit.
Once you have completed your documents you need to file them with the Court.
When the Court seals the Summons you will be given a date when the application will be heard in front of a judge.
There is a filing fee associated with the Summons – refer to the County Court fee table. If you intend on claiming financial hardship you will need to file a Fee Waiver Application.
You need to serve sealed copies of the documents on the other parties as soon as possible.
If you are serving an individual, you need to leave the documents with them in person.
If you are serving a company, you need to post them to the registered office of the company.
Please read the following documents carefully, as they provide important information and guidance on how to effect service:
If the Court orders the default judgment be set aside, it will likely order that you are to pay the plaintiff’s legal costs thrown away by reason of entry of the judgment and costs and inconvenience of the application to set aside.
The Court will make orders for filing of a defence, giving you the opportunity to respond to the plaintiff’s claim.
You might be eligible for free legal help from our lawyers. Making an online application is the quickest and best way to apply for free legal help.
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This resource was last updated on 21 November 2024. This is legal information only and does not constitute legal advice. You should always contact a lawyer for advice specific to your situation. Please view our disclaimer for more information.