Topic 7: Pre-Trial Judgements Flashcards
Topic 7: Pre-Trial Judgements/Ending Proceedings Early
The vast majority of cases do not result in a hearing, as it can resolve earlier.
Default Judgement
Occurs where there is no defence filed by the Dft within the 28 days to respond to the Pft’s Claim and Statement of Claim.
The Pft must prove service of a claim on the Dft before judgement is given. Must prove its their choice not to respond, not because they were unaware.
Must also prove they have no paid or filed a defence.
Default Judgement: Debt or Liquidated Demand
If the Pft’s claim against the Dft in default is for a debt or liquidated demand, with or without interest.
The Pft may file a request for judgement for an amount not more than the amount claimed with interest calculate to the date of judgement.
Liquidated means its able to be calculated with a formula. Unknown amount but formula in lease to work out how much is owed.
The following costs include:
- Costs for issuing the claim
- Costs for obtaining judgement
- Any other fees and payments to the extent that is reasonably incurred and paid (e.g. ASIC search).
Where the party pays the amount but not the interest claimed, you can seek judgement on just the interest.
Default Judgement: Debt or Liquidated Demand –> If the Pft seeks to recover a higher rate of interest
If the Pft seeks to recover a higher rate of interest than specified, the court may:
- Decide the interest, if any, that is recoverable; and
- Direct that judgement be given for the interest
- Direct that judgement be given against the dft
If you have an agreement with a higher interest than in the act, the court will consider whether it is reasonable.
Default Judgement: Debt or Liquidated Demand –> Where period for which interest is to be awarded is not specified
There are three sections with respect to claiming interest, and if you want the maximum amount of interest, you want to ensure you claim interest right from the date of the cause of action.
Interest is only recoverable from the date of interest claimed.
Default Judgement: Register is not required to consider Pft’s Merits
Where it is proven, the register is not required to consider the merits of the Pft’s claim against the dft.
Default judgement: Unliquidated Damages
You can still make your application for default judgement, but it’s purely on liability. Court can give you that judgement, but have a separate hearing to determine the damages.
Default Judgement: Other Orders
Other claims can be for land or goods etc.
Default Judgement: Costs
If the Dft has made payment of the claim but failed to pay interest and costs, then you can still seek a judgement for costs.
if you haven’t served a letter of demand, you wont be able to claim your costs.
Default Judgement: Setting aside Default Judgement
You must determine if the default judgement was regularly or irregularly obtained.
Default Judgement: Irregularly Obtained
The court has the power to set aside a judgement that is irregular, where the Pft has not complied strictly with the rules. The Dft can make application to have the application set aside. The Pft should also pay the costs.
e.g. part payments were made but not listed in the judgement. or they were not served correctly. But it reached judgement anyways = irregularly obtained.
Default Judgement: Regularly Obtained
Where the Pft has done everything correct, the Dft can still have it set aside but must show three things:
- There is a reasonable excuse for the failure to defend
- They have a prima facie defence on the merits
- The time period between when you should have filed and making the application now is such that the Pft has suffered a prejudice which cannot be compensated by costs.
- that means there may have been something that happened in the time frame from when the default judgement was obtained through to this application. if other things occured that can’t be compensated by money, there may be an issue with it getting overturned.
The Dft is then able to file an application (interlocutory) with an affidavit and exhibit the defence. Dft will pay the costs for not filing it earlier.
Summary Judgement
Here, a defence was filed. However, we consider whether a trial is required, and if not, we consider if a summary judgement should be applied.
“no real prospect of succeeding” not “hopeless or bound to fail”
Summary Judgement for Pft
A Pft may, at anytime the Dft files their NOTD, apply to the court for judgement against the Dft.
The Pft must serve an interlocutory application with an affidavit attached on why there is no need for trial and file it at least 8 business days before the hearing. The other party can file a response.
If the court is satisfied that the Dft has no real prospect of winning/successfully defending all or part of the Pft’s claim and there is no need for trial, then the court may give judgement for the Pft against the Dft for all or part of the Pft’s claim and make an order they see appropriate.
Summary Judgement for Dft
A Dft, at anytime after filing NOTD, may apply to the court for judgement against the Pft.
Must prove the Pft has no real prospect of succeeding on all or part of their claim and that there is no real need for trial. The court may give judgement for the Dft against the Pft and make an order they deem appropriate.
