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8 Pages • Topic Notes • Year: Pre-2021
I. Default Judgment 1.1 UCPR 2005 (NSW) R 16.2 Definition of “in default” (1) A defendant is "in default" for the purposes of this Part: (a) if the defendant fails to file a defence within the time limited by rule 14.3 (1) or within such further time as the court allows, or (b) if the defendant fails to file any affidavit verifying his or her defence in accordance with any requirement of these rules, or (c) if, the defendant having duly filed a defence, the court orders the defence to be struck out. (2) Despite subrule (1), a defendant is not in default if the defendant: (a) has made a payment towards a liquidated claim under rule 6.17, or (b) has filed an acknowledgment of claim under rule 20.34, or (c) has filed a defence after the time limited by these rules or allowed by the court, but before a default judgment is given against the defendant. R 16.3 Procedure where defendant in default (1) If a defendant is in default, the plaintiff: (a) may apply for judgment to be given under this Part, according to the nature of his or her claim for relief, against the defendant in default, and (b) may carry on the proceedings against any other party to the proceedings. (1A) Unless the court otherwise orders, an application under this rule: (a) may be dealt with in the absence of the parties, and (b) need not be served on the defendant. (2) Unless the court orders otherwise, an application for judgment to be given under this Part must be accompanied by: (a) an affidavit of service of the statement of claim ( "the affidavit of service" ), and (b) an affidavit in support of the application ( "the affidavit in support" ). (3) An affidavit of service is unnecessary in relation to a statement of claim whose service has been effected by the Local Court under rule 10.1 (2). (4) Unless the court orders otherwise, an affidavit in support is valid for the purposes of an application only if it has been sworn within 14 days before the date on which the application is filed.
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