Common situations
- A claim served at an old address, or never received
- A defendant who thought the matter had been settled or was being handled
- Judgment for an amount the defendant disputes
- A plaintiff responding to a motion to set aside its judgment
What the court looks at
In outline, the court considers:
- Promptness: whether the defendant moved quickly after learning of the judgment.
- The explanation: a plausible reason for not defending in time.
- The defence: whether there is an arguable defence on the merits, set out in evidence rather than a bare denial.
- Fairness: prejudice to each side and the integrity of the process.
Where the claim was never properly served, different considerations may apply.
What happens next
- Obtain the court file and the enforcement documents.
- Prepare the motion promptly, with affidavit evidence explaining the default and the proposed defence.
- Ask for a stay of enforcement if garnishment or seizure is under way.
- If the judgment is set aside, file a defence and the case proceeds normally.