How to Set Aside a Default Judgment in South Australia Magistrates Court

A default judgment means judgment was entered after no defence was filed within 28 days. A fixed debt may be entered administratively without a hearing; for unliquidated or unquantified damages, judgment may be entered as to liability only, with the amount assessed at a later hearing. A judgment can be enforced, but the amount is not always finally determined when it is entered.

It's not necessarily permanent. You can apply to set it aside, but the court won't do it automatically, and the longer you wait, the harder it gets.

How Default Judgments Happen

When the 28-day defence window expires and no Form 51/51S defence has been filed, the claimant may lodge a Form 76B Application to Registrar-Sign Judgment, supported by proof of service. For a fixed debt, the registrar can enter judgment administratively without a hearing. For a property-loss claim, the registrar may enter judgment for the claimed amount if the applicant served the evidence required by the Rules. For other claims where an amount or relief is to be assessed, the registrar lists a directions hearing on the assessment. You are not necessarily notified before the claimant applies.

The claimant can then move straight to enforcement — sheriff warrants to seize property, investigation summonses to examine your finances, or garnishee orders against your bank account or wages.

Grounds for Setting Aside

To set aside a default judgment, you need to file an interlocutory application (Form 77) supported by an affidavit (Form 12). The court will consider two main questions:

1. Was the service defective?

Under rule 142.11, you can apply to set aside or vary a default judgment for an irregularity if the claim or cross-claim documents were not served according to the Rules and their existence and content did not come to your attention at least 28 days before judgment. It also covers documents served by email or post, except court-ordered substituted service, if they were sent to an address you no longer used or were not received there and did not come to your attention at least 28 days before judgment. Explain the service problem and when you learned of the case in your affidavit; if the court is satisfied the judgment resulted from an irregularity, it may set the judgment aside on conditions it thinks fit.

2. Do you have a defence on the merits?

Under rule 142.12, you need to establish both that the claim documents did not come to your attention or you had another reasonable excuse for not filing a defence, and that you have a reasonable basis for defending the claim. Explain:

• You have a genuine defence — not just a general denial, but specific facts that, if proven, would defeat the claim or reduce the amount.
• You have a reasonable explanation for the delay — illness, being overseas, genuine confusion about the deadline, or not understanding the documents.
• You acted promptly once you became aware of the judgment; delay may weigh against your application.

"I was busy" or "I didn't think it was important" rarely satisfies the court. But "I was in hospital during the response period and only learned of the judgment when a sheriff's officer attended my property" is the kind of explanation that can work.

What to Include in Your Application

Your Form 77 application and Form 12 affidavit should cover:

• The timeline — when you were served (or believe you were served), when you learned of the default judgment, and how much time has passed since.
• The reason for missing the deadline — factual, not argumentative. Attach any supporting evidence (medical certificates, travel records, postal tracking showing non-delivery).
• A draft defence — consider attaching a Form 51S-style draft to show the grounds you would rely on if given leave to defend.
• Prejudice to the claimant — acknowledge whether setting aside the judgment would cause the claimant any loss that can't be compensated by costs or interest.

The Cost

There is no fee for filing an interlocutory application. If the court grants your application, it may order you to pay the claimant's costs thrown away — the costs they incurred in obtaining and enforcing the default judgment. This does not mean you've lost the underlying case.

How Long You Have

Rules 142.11 and 142.12 do not set a fixed filing period for an application to set aside a default judgment, but apply promptly because delay works against you. The court weighs:

• How quickly you acted after learning of the judgment
• Whether the claimant has already taken enforcement steps
• Whether witnesses' memories or documentary evidence have degraded

The longer you wait after learning of the judgment, especially if enforcement has begun or evidence has degraded, the harder it may be to show that you acted promptly.

What Happens If the Court Grants It

If the court sets aside the default judgment, it may do so on conditions and specify a time for you to file a Form 51/51S Defence. The case can then proceed through the normal pre-trial track: Form 73A document exchange, a directions hearing, and eventually a trial or settlement. Filing the set-aside application does not automatically stay enforcement; if enforcement is underway, include an urgent request for a stay of enforcement in the Form 77 and ask for an expedited hearing.

When to Get Legal Advice First

If the judgment amount is substantial, or if the claimant has already commenced enforcement, consider calling the Legal Services Commission helpline at 1300 366 424 before filing. They can help you assess whether your proposed defence is strong enough to justify the application and whether any urgent step (like applying for a stay of enforcement) is needed.

Our guide to responding to a minor civil claim in South Australia covers the default judgment process and response options in detail, with a decision tree for choosing the right response route.

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