Division 3Division 3 Default judgment following service abroad of initiating process
This Division applies to civil proceedings for which an initiating process has been forwarded following a request for service abroad to the Central Authority (or to an additional authority) for a Convention country.
11A.10 Restriction on power to enter default judgment if certificate of service filed
(1) This rule applies if:(a) a certificate of service of initiating process has been filed in the proceedings (being a certificate in due form within the meaning of rule 11A.6 (2)) that states that service has been duly effected, and(b) the defendant has not appeared or filed a notice of address for service.(2) In circumstances to which this rule applies, default judgment may not be given against the defendant unless the Court is satisfied that:(a) the initiating process was served on the defendant:(i) by a method of service prescribed by the internal law of the Convention country for the service of documents in domestic proceedings on persons who are within its territory, or(ii) if the applicant requested a particular method of service (being a method under which the document was actually delivered to the defendant or to his or her residence) and that method is compatible with the law in force in that country, by that method, or(iii) if the applicant did not request a particular method of service, in circumstances where the defendant accepted the document voluntarily, and(b) the initiating process was served in sufficient time to enable the defendant to enter an appearance in the proceedings.(3) In subrule (2) (b), sufficient time means:(a) 42 days from the date specified in the certificate of service in relation to the initiating process as the date on which service of the process was effected, or(b) such lesser time as the Court considers, in the circumstances, to be a sufficient time to enable the defendant to enter an appearance in the proceedings.
11A.11 Restriction on power to enter default judgment if certificate of service not filed
(1) This rule applies if:(a) a certificate of service of initiating process has not been filed in the proceedings, or(b) a certificate of service of initiating process has been filed in the proceedings (being a certificate in due form within the meaning of rule 11A.6 (2)) that states that service has not been effected,and the defendant has not appeared or filed a notice of address for service.(2) If this rule applies, default judgment may not be given against the defendant unless the Court is satisfied that:(a) the initiating process was forwarded to the Central Authority, or to an additional authority, for the Convention country in which service of the initiating process was requested, and(b) a period that is adequate in the circumstances (being a period of not less than 6 months) has elapsed since the date on which initiating process was so forwarded, and(c) every reasonable effort has been made:(i) to obtain a certificate of service from the relevant certifying authority, or(ii) to effect service of the initiating process,as the case requires.
11A.12 Setting aside judgment in default of appearance
(1) This rule applies if default judgment has been entered against the defendant in proceedings to which this Division applies.(2) If this rule applies, the Court may set aside the judgment on the application of the defendant if it is satisfied that the defendant:(a) without any fault on the defendant’s part, did not have knowledge of the initiating process in sufficient time to defend the proceedings, and(b) has a prima facie defence to the proceedings on the merits.(3) An application to have a judgment set aside under this rule may be filed:(a) at any time within 12 months after the date on which the judgment was given, or(b) after the expiry of that 12-month period, within such time after the defendant acquires knowledge of the judgment as the Court considers reasonable in the circumstances.(4) Nothing in this rule affects any other power of the Court to set aside or vary a judgment.