How to Set Aside a Default Judgment in New Brunswick Small Claims Court

A default judgment in New Brunswick Small Claims Court may be entered because you did not file a Form 2 Response within 30 days. If you missed the hearing itself, Form 15 is used to seek to set aside the judgment entered after that hearing. Either type of judgment is enforceable, but the rules provide a formal set-aside process.

Two Situations, Two Forms

Which form you need depends on how the default happened:

Form 8 — Affidavit to Set Aside Default or Interim Judgment: Use this when you missed the 30-day response deadline and the claimant obtained a default judgment (Form 7) or an interim judgment for unliquidated damages. This is the more common scenario.

Form 15 — Affidavit to Set Aside Judgment After Hearing: Use this when you filed a response but did not attend the scheduled hearing, and the hearing officer entered judgment in your absence.

The Form 8 Set-Aside Application Package

For a default or interim judgment, the application package has three documents:

1. Form 23 — Application for Order by Small Claims Court (the general motion form)
2. Form 8 — a sworn affidavit explaining why you missed the response deadline
3. A completed Form 2 Response — attached as an exhibit, showing the defence you would have filed

You must serve this entire package on every other party at least 10 clear days before the scheduled application hearing date. "Clear days" means the service date and the hearing date do not count — so serve well ahead of time.

If the judgment followed a hearing you missed, Form 15 is the relevant affidavit. Confirm the application steps for that situation with the court clerk or a lawyer.

The Two-Part Test for a Form 8 Application

For a Form 8 application, Sections 21(8) and 23(3) of the Regulation require both parts of a two-part test:

1. A valid reason for the default — You did not receive the claim in time, you were seriously ill, there was an unavoidable mistake, or something else genuinely prevented you from responding. "I forgot" or "I was busy" is unlikely to succeed.

2. An arguable defence on the merits — Your proposed Form 2 Response (the one attached to the application) must show that you have a real case to argue. The hearing officer is not deciding who wins — just whether your defence has enough substance that the matter should go to a full hearing.

Fail either part and the default judgment stands.

Enforcement Does Not Automatically Stop

Filing the set-aside application does not freeze collection. If the claimant has already sent the judgment to the Sheriff for enforcement, you need to include a request for an interim stay of enforcement in your Form 23 application. Without that stay, seizure proceedings can continue while your motion is pending.

Acting Quickly Matters

Act promptly after you learn about the judgment. The application package must be served at least 10 clear days before the scheduled application hearing date.

Our New Brunswick small claims response guide covers the full set-aside procedure, including how to draft the Form 8 affidavit and what evidence strengthens each part of the two-part test.

See more New Brunswick guides →