Imagine receiving the nasty surprise that default judgement has been entered against your name because of a summons that you have never even received. It is necessary that you know the procedure of how to rescind a default judgement to get you out of this unwanted situation.
Many people are confronted with the unfortunate situation of a judgement being entered against their name, without even being aware that legal action is being taken against them. The reason for this is that when a party fails to deliver a notice of intention to defend a summons, a Plaintiff is entitled to lodge an application for default judgment.
Serving a summons
The reason for many Defendants not filing a notice of intention to defend, is the fact that they simply never receive the summons initiating an action against them. Personal service of documents by the Sheriff is only required where the matter affects a person’s personal status, such as with divorces and sequestrations. As it is not a requirement for the Sheriff personally, to serve a summons on a person, it can lead to situations where the Defendant never sees the summons, although the Sheriff stated that the summons has been legitimately served.
People indicate their domicilium citandi et executandi or nominated address where notices are sent, in an agreement. In the event of the Defendant moving, the Sheriff will still deliver the summons to this address, but the Defendant will never receive it.
What to do
In the event of a Defendant not receiving a summons, certain steps have to be taken to have the judgment rescinded. The Defendant has to serve and file his/her application for rescission of judgment within 20 days after becoming aware of the judgment that was entered against them. The Defendant (now the Applicant) is required to set out in an affidavit why the matter was not defended and what the bona fide defence is to the claim. The onus is upon the Applicant to set out legitimate reasons for why the matter was not defended.
When bringing an application for the rescission of judgement before court, the following principles are applicable:
The Applicant must give a reasonable explanation for his default. The court will be unwilling to help the Applicant if it is found that he/she was aware of the proceedings or if the default was simply due to his/her own negligence. If the Applicant’s default is of a wilful or negligent nature, these will serve as considerations that the court will take into account when deciding whether an application should be granted.
In many cases an Applicant simply rescinds a default judgement to delay the inevitable. It is therefore necessary for the Applicant to show that he/she is not simply delaying the Plaintiff’s claim. A bona fide defence, in other words, a genuine defence, must be shown. However, it is not required to deal fully with the merits thereof or produce any evidence in this regard.
Ultimately, the court has discretion whether to rescind the default judgment or not, based on whether good cause was shown by the Applicant.
Although it involves an unwanted and often lengthy and expensive process, it is important to have any judgments against your name rescinded as soon as possible, as they have a negative impact on your credit rating. These judgements, if executed, will also leave you highly annoyed when the Sheriff shows up on your doorstep with a warrant of execution to seize your personal belongings.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Please feel free to contact Brian Kahn for further information or specific and detailed advice. Errors and omissions excepted (E&OE)