Judgments and default judgments

If you have a case at court over a debt if it does not settle it will go to a trial. All parties will present their evidence to the court and can be examined by the other parties about it. The magistrate will then make a decision. The decision takes the form of a judgment. In some situations the magistrate can make judgment in a party’s favour without a trial when a party fails to do what is required by the law. This is called default judgment.

Find out:

  • What is a judgment
  • What is default judgment
  • Do time limits apply to apply for default judgment
  • Can a default judgment be cancelled (set aside).

What is a judgment?

The court's decision is called a judgment. Once a court judgment has been made, it can be enforced if the other party does not follow it. A judgment debt is the amount awarded to be paid under a court order.

The party who judgment is made in favour of is called the judgment creditor. The party who the judgment is made against, who owes the money, is the judgment debtor.

If a judgment has been made against you and you don't understand, or you don't have money to pay, you should get legal advice.

What is a default judgment?

Default judgment is when judgment is given in your favour without a trial, usually because the other party has not done something within the required time frames.

When can I ask the court for default judgment?

You can ask the court for default judgment:

  • In a consumer/trader minor case claim, if a party does not attend a listing conference (or pre-trial conference)
  • In other minor case claims if:
    • the defendant
      • does not lodge and serve a response within 14 days of receiving a claim, or
      • does not lodge a statement of defence as required, or
    • a party does not attend a pre-trial conference.
  • In general procedure claims if:
    • the defendant has not:
      • lodged a response, or
      • lodged and served a statement of defence as required by the rules, or as ordered by a registrar at a pre-trial conference, or
    • a party:
      • fails to go to a pre-trial conference, or
      • fails to comply with an order about lodging a listing conference   memorandum, or
      • did not attend, or if they did not have to attend, their lawyer fails to go to a listing conference, or
      • does not follow the requirements of the Magistrates Court (Civil Proceedings) Act 2004 (WA), the rules of court, court orders or directions.

Get legal advice about these situations.

If you apply for a default judgment, you can also ask for an order for any costs you have because they did not comply.

The registrar should not give default judgment if the other party has not lodged a statement of defence in some situations involving an application to have the claim struck out.  

Do time limits apply?

In certain situations where the defendant did not lodge a defence or lodge and serve a statement of defence, a registrar must not give default judgment without a magistrate’s approval. This includes if one year or more has passed since the claim was served. In this case the registrar must refer the matter to a magistrate for consideration. If this occurs you will need to file an affidavit stating the reasons why it took so long for you to apply for default judgment. The magistrate may then give approval for default judgment to be given.

It is best to apply as soon as possible, because the defendant can still lodge their response up until you ask for default judgment.

What if the court makes a default judgment against me?

In some situations, you might be able to have the judgment set aside.

 

Reviewed: 11 April 2018

Disclaimer

The information displayed on this page is provided for information purposes only and does not constitute legal advice. If you have a legal problem, you should see a lawyer. Legal Aid Western Australia aims to provide information that is accurate, however does not accept responsibility for any errors or omissions in the information provided on this page or incorporated into it by reference.