judgment-default-defence-guidelines
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University of Wollongong *
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3300
Subject
Law
Date
Feb 20, 2024
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docx
Pages
6
Uploaded by MasterBeaverMaster1048
Judgment in default of defence
guidelines
Commercial Registry
Commercial Registry: Judgment in default of defence guidelines
CONTENTS
1.
Background
......................................................................................................................................
3
2.
Documents required
.........................................................................................................................
3
3.
Preparation of default judgment
........................................................................................................
3
4.
Further information
...........................................................................................................................
3
4.1.
A claim for debt
.........................................................................................................................
3
4.2.
A claim for damages
..................................................................................................................
3
4.3.
Calculating interest
....................................................................................................................
4
4.4.
Calculating costs
.......................................................................................................................
5
5.
Frequently asked questions
..............................................................................................................
5
5.1.
How do I file my judgment on Citec Confirm?
............................................................................
5
5.2.
What happens once my judgment has been accepted for filing on Citec Confirm?
...................
6
5.3.
What happens if my judgment is rejected for filing on Citec Confirm?
.......................................
6
5.4.
What happens after interlocutory judgment is granted?
.............................................................
6
COUNTY COURT OF VICTORIA
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PAGE 2 OF 6
Commercial Registry: Judgment in default of defence guidelines
1. Background
The following default judgment guidelines apply when a defendant has failed to serve a Notice of defence
within the prescribed time.
2.
Documents required
Applications for judgments in default of defence must include the following documents:
●
the default judgment in the appropriate prescribed form (Form 60G-60L), reflecting the remedy being sought
●
an affidavit in support pursuant to r21.02(2) (including any relevant exhibits) proving – o
the defendant’s failure to serve a defence within the time limited;
o
service on the defendant of Form 21A (exhibited to affidavit); and o
the defendant’s failure to serve a defence within 7 days of service of the Form 21A
3.
Preparation of default judgment
When preparing your default judgment, please ensure that:
●
a check is conducted on Court Connect to ensure a notice of appearance has not already been filed
●
the time for the defendant/s to file a notice of appearance has elapsed
●
the proper basis and overarching obligations certifications have been filed
●
a sealed copy of the originating process is exhibited to the affidavit of service - r6.17(3) and r6.17(4)
●
the ‘Date Entered’ (date of order) is left blank
●
the defendant/s against whom judgment is sought is identifiable on the face of the judgment
●
the ‘How Obtained’ section must state that the judgment is in default of service of the defence
●
the amounts of the claim, interest and costs are correctly calculated and are accurate in both the
subtotals and the grand total.
4.
Further information
4.1.
A claim for debt
A plaintiff is held strictly to the claim indorsed on the prayer for relief on the writ and statement of claim.
Judgment can only be entered for a fixed amount where the claim is for a debt – r21.03(1)(a).
If the defendant has made payment/s toward the debt, the judgment must state the original claim minus
credits paid.
4.2.
A claim for damages
COUNTY COURT OF VICTORIA
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Commercial Registry: Judgment in default of defence guidelines
If the claim is for damages, interlocutory judgment will be entered against the defendant/s for damages to be assessed
in accordance with r21.03(1)(b).
Where the claim is for damages, judgment cannot
be entered for a fixed amount (even if outlined in the statement of claim).
If damages are claimed in a fixed amount, and you do not wish for the sum to be assessed, you are required to seek leave to amend the statement of claim to specify the recovery of a debt
, as opposed to
damages
.
Example:
John is a florist who supplies flowers on a weekly basis to DB and CO Pty Ltd (DB) to decorate their office. DB have not paid their account for 12 months and owe a total of $105,000. John then brought a claim against DB for damages; who have failed to file a notice of appearance.
John no seeks to enter judgment for damages (in accordance with the statement of claim) in the fixed amount of $105,000.
John cannot enter a default judgment for the fixed amount, as the remedy sought in the statement of claim/prayer for relief is for damages.
If John wishes to enter judgment for the fixed amount, he will be required to seek leave to amend his statement of claim to specify the recovery of a debt, as opposed to damages.
Alternatively, John can enter an interlocutory judgment for damages to be assessed using the appropriate form.
4.3.
Calculating interest A plaintiff is entitled to interest where the claim is made for the recovery of a debt – r21.03(1)(a). Interest is calculated at the current Victorian penalty interest rate, unless clearly pleaded otherwise. For current and historical rates of Victorian penalty interest, please refer to the County Court’s Costs Scale for Default Judgments which can be located in the fees section of the County Court website.
A formula to calculate interest is as follows: claim amount times
interest rate divided by
365 days times
the amount of days in the date range.
Other important matters to consider when claiming interest: ●
you can only claim interest once from the date of commencement of the proceeding to the date that judgment is filed r21.03(1)(a)
●
the date of commencement of the writ can be found in the filing report results on Court Connect under the heading ‘Filing Date’
●
the date the judgment is entered is the date it is e-Filed on Citec Confirm. If the judgment is filed after 4:00pm, or on a weekend/public holiday, it is deemed filed the next business day (R3.05(2)).
●
interest may be claimed from a date prior to the date of commencement, provided the date range is clearly pleaded in the statement of claim and prayer for relief
●
interest calculations (being the date period, number of days and interest rate) must be shown on
the face of the judgment
COUNTY COURT OF VICTORIA
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Commercial Registry: Judgment in default of defence guidelines
●
if the defendant/s have made payment/s to the claim, your interest must be calculated on the original claim amount up to the date when the first payment was made; thereafter interest will be
calculated on the reduced amount and so on until the date of judgment.
Example:
Steven has brought a claim of debt for $200,000 against Yellow Store Pty Ltd (YS). As YS have failed to file a notice of appearance, Steven seeks to enter Judgment for the debt of $200,000 as well as interest pursuant to statute (penalty interest rate).
Steven filed his writ on 01/02/2018 at 4:35pm, has served it upon the defendant. Steven is now seeking
to enter his judgment on 19/02/2018 at 2:30pm. As Steve filed his writ after 4:00pm
his date of commencement is 2/02/2018
, however, the date of the judgment remains 19/02/2018 as it was filed before 4:00pm
. Steven outlines his claim and interest on the face of the judgment as follows:
The judgment of the Court is that:
“The defendant pay the plaintiff the sum of $200,000 for the outstanding claim, $986.30 for interest, and
$3040 for costs -
Claim $200,000 Interest
$986.30
(2/02/2018–19/02/2018 being 18 days at 10%) Costs
$3040.00
TOTAL
$204,026.30
4.4.
Calculating costs Costs can no longer be itemised as the County Court Costs Scale has been revoked. Costs are fixed at
80 percent of the applicable rate set out in the Supreme Court Costs Scale. The costs claimable increase every financial year.
The current costs claimable in the County Court when entering a default judgment can be found on the County Court website
.
5.
Frequently asked questions 5.1.
How do I file my judgment on Citec Confirm? The judgment is filed using the ‘Additional Filing’ page on Citec Confirm. The judgment, and the affidavit
in support (including exhibits) are to be filed together (as one scanned PDF document) using the correct
filing code. The appropriate filing codes are set out below:
Judgment type
Filing code
Document name
Default Judgment for Debt only
2JDN
Judgment in Default of Appearance Filed
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Commercial Registry: Judgment in default of defence guidelines
Default Judgment for Recovery of Land only
2JPL
Judgment for Possession of Land Filed
Default Judgment for Debt and
Recovery of Land
2JDN
Judgment in Default of Appearance Filed
Interlocutory Judgment for Damages or Value in default
2IJN
Interlocutory Judgment in Default of Appearance Filed
Interlocutory Judgment for Detention of Goods in Default
2IJN
Interlocutory Judgment in Default of Appearance Filed
Interlocutory Judgment on Counterclaim
2IJC
Interlocutory Judgment on Counterclaim Filed
5.2.
What happens once my judgment has been accepted for filing on Citec Confirm?
All default judgments receive a Form 28 Filing Confirmation (Court Seal). A copy can be downloaded from your filing results by clicking on the ‘Y’ in the Form 28 column.
A signed copy of the order made by the Registrar will not be provided, however the order will be published on Court Connect.
5.3.
What happens if my judgment is rejected for filing on Citec Confirm?
All default judgments receive a Form 28 Filing Confirmation (Court Seal). A copy can be downloaded from your filing results by clicking on the ‘Y’ in the Form 28 column.
A copy of the reasons for the rejection will be available in your filing results page on Citec Confirm, as well as being published on Court Connect. Once the judgment is corrected, all documents (being the judgment, and affidavit of service (including exhibits)), must be re-filed together using the correct filing code.
5.4.
What happens after interlocutory judgment is granted?
The matter will be set down for a trial assessment.
If there is any pending trial listed for any remaining defendant/s, the trial assessment will be heard at that time r51.05.
The damages will be assessed by the Court before a Judicial Registrar or a Judge – r51.01 and r51.04.
The debtor may take part in the trial assessment – r51.02.
COUNTY COURT OF VICTORIA
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