(cf SCR Part 17, rule 1; DCR Part 13, rule 1; LCR Part 11, rule 1)
This Part applies to proceedings commenced by statement of claim.
16.2 Definition of “in default”
(cf SCR Part 17, rule 2; DCR Part 13, rule 1; LCR Part 11, rule 1)
(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.
16.3 Procedure where defendant in default
(cf SCR Part 17, rule 3; DCR Part 13, rule 1)
(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.
16.4 Default judgment on claim for possession of land
(cf SCR Part 17, rule 7)
(1) Subject to rule 36.8, if the plaintiff’s claim against a defendant in default is for possession of land only, judgment may be given for the plaintiff for possession of land, as against the defendant, and for costs.(2) If, before judgment is given, any person files notice of motion for the person’s addition as a defendant, judgment may not be given under this rule until the motion is disposed of.(3) The relevant affidavit in support:(a) must identify any persons (other than parties to the proceedings) who were in occupation of the whole or any part of the land:(i) as at the time the originating process was filed, or(ii) if the claim for possession arises from an amendment to the originating process, as at the time the amendment was made,and, if any such person was in occupation of the land pursuant to a right of occupation under a residential tenancy agreement within the meaning of the Residential Tenancies Act 2010, must contain a statement to that effect, and(b) in relation to each such person:(i) must state that the person’s occupation of the land is not to be disturbed, or(ii) must state that the person is no longer in occupation of any part of the land, or(iii) must state that the person has been served with a notice pursuant to rule 6.8 and that the time allowed for the person to apply to the court to be joined as a defendant has now passed,as the case requires, and(c) if the claim for possession of the land arises from a default in the payment of money, must give particulars of the default (including any payments made to date to reduce the amount owing and the current amount owing taking into account any such payments), and(d) must state the source of the deponent’s knowledge of the matters stated in the affidavit concerning the occupation of the land and any default in the payment of money referred to in paragraph (c), and(e) must state whether costs are claimed and, if so, how much is claimed for costs, indicating:(i) how much is claimed on account of professional costs (not exceeding the amount fixed by the regulations made for the purposes of section 329 of the Legal Profession Act 2004), and(ii) how much is claimed on account of filing fees, and(iii) how much is claimed on account of the costs of serving the originating process, and(f) must state when and how the originating process was served on the defendant.(4) A reference in this rule to a residential tenancy agreement within the meaning of the Residential Tenancies Act 2010 is taken to include a reference to a residential tenancy agreement within the meaning of the Residential Tenancies Act 1987 as in force before its repeal.
16.5 Default judgment on claim for detention of goods
(cf SCR Part 17, rule 6)
(1) If the plaintiff’s claim against a defendant in default relates to the detention of goods only, judgment may be given for the plaintiff against the defendant, in accordance with the plaintiff’s claim:(a) for delivery of the goods to the plaintiff and for costs, or(b) for payment to the plaintiff of the value of the goods (as assessed by or in accordance with the directions of the court) and for costs,at the plaintiff’s option.Note. See Part 30 for provisions as to assessment of value of goods.(2) The relevant affidavit in support:(a) must state which goods have, and which have not, been delivered to the plaintiff since the time the originating process was filed, and(b) must give particulars of any payments that the defendant has made to the plaintiff in respect of the goods or state that no such payments have been made, as the case may be, since the time the originating process was filed, and(c) must state the source of the deponent’s knowledge of the matters stated in the affidavit concerning the delivery or non-delivery of the goods, and(d) must state whether costs are claimed and, if so, how much is claimed for costs, indicating:(i) how much is claimed on account of professional costs (not exceeding the amount fixed by the regulations made for the purposes of section 329 of the Legal Profession Act 2004), and(ii) how much is claimed on account of filing fees, and(iii) how much is claimed on account of the costs of serving the originating process, and(e) must state when and how the originating process was served on the defendant.
16.6 Default judgment on debt or liquidated claim
(cf SCR Part 17, rule 4; DCR Part 13, rule 1; LCR Part 11, rule 1)
(1) If the plaintiff’s claim against a defendant in default is for a debt or liquidated claim or for a claim for unliquidated damages of the kind referred to in rule 14.13 (2), judgment may be given for the plaintiff against the defendant for:(a) a sum not exceeding the sum claimed, and(b) interest up to judgment, and(c) costs.(2) The relevant affidavit in support:(a) must state the amount due to the plaintiff, in respect of the cause of action for which the proceedings were commenced, as at the time the originating process was filed, and(b) must give particulars of any reduction of that amount, and costs, as a consequence of any payments made, or credits accrued, since the time the originating process was filed, and(c) must state the source of the deponent’s knowledge of the matters stated in the affidavit concerning the debt or debts, and(d) must state the amount claimed by way of interest, and(e) must state whether costs are claimed and, if so, how much is claimed for costs, indicating:(i) how much is claimed on account of professional costs (not exceeding the amount fixed by the regulations made for the purposes of section 329 of the Legal Profession Act 2004), and(ii) how much is claimed on account of filing fees, and(iii) how much is claimed on account of the costs of serving the originating process, and(f) must state when and how the originating process was served on the defendant.
16.7 Default judgment on claim for unliquidated damages
(cf SCR Part 17, rule 5)
(1) If the plaintiff’s claim against a defendant in default is for unliquidated damages only, judgment may be given for the plaintiff against the defendant for damages to be assessed and for costs.Note. See Part 30 for provisions as to assessment of damages.(2) The relevant affidavit in support:(a) must state that the matter has not been settled with the defendant, and(b) must state the source of the deponent’s knowledge of the matters stated in the affidavit concerning the claim, and(c) must state whether costs are claimed and, if so, how much is claimed for costs, indicating:(i) how much is claimed on account of professional costs (not exceeding the amount fixed by the regulations made for the purposes of section 329 of the Legal Profession Act 2004), and(ii) how much is claimed on account of filing fees, and(iii) how much is claimed on account of the costs of serving the originating process, and(d) must state when and how the originating process was served on the defendant.
16.8 Default judgment on mixed claims
(cf SCR Part 17, rule 8)
(1) If the plaintiff’s claim against a defendant in default includes any 2 or more of the claims referred to in this Part, and no other claim, judgment may be given for the plaintiff against the defendant on any of those claims as if it were the plaintiff’s only claim for relief against that defendant.(2) In the case of two or more such claims, the relevant affidavit in support must comply with the requirements of this Part in relation to each of those claims.
16.9 Judgment for costs alone after other claims satisfied
(cf SCR Part 17, rule 10 (1); DCR Part 31, rule 13; LCR Part 26, rule 4)
(1) If a plaintiff is entitled to have judgment given under this Part against a defendant in default for any relief and for costs, but it appears by affidavit that, by reason of the defendant having satisfied the plaintiff’s claims, it is unnecessary for the plaintiff to continue the proceedings against the defendant, judgment for the plaintiff may be given under this Part against that defendant for costs alone.(2) Whatever the plaintiff’s claims for relief against a defendant in default, if:(a) the defendant satisfies the plaintiff’s claims or complies with the plaintiff’s demands, or(b) it otherwise becomes unnecessary for the plaintiff to continue the proceedings against the defendant,the court may, on application by the plaintiff, give judgment against the defendant for costs.
16.10 Judgment not limited by plaintiff’s claims for relief
(cf SCR Part 17, rules 9 and 10 (2))
Whatever the plaintiff’s claims for relief against a defendant in default, the court may, on application by the plaintiff, give such judgment against the defendant as the plaintiff appears to be entitled to on his or her statement of claim.