Sometimes, the first you will hear that there is a judgment against you is when the Sheriff turns up at your door. This can happen when a Statement of Claim (official document used to start court proceedings) was:

• Sent to your old address (and the mail was not forwarded to you)
• Served (given to) on someone at your old address
• Served on someone at your current address but s/he did not give it to you
• Not served on you at all as the plaintiff (the person taking legal action against you) obtained permission from the Court not to have to serve you or to serve someone else instead (such as a relative believed to be in contact with you).

You can see what a Statement of Claim (Form 2) looks like at www.lawlink.nsw.gov.au and then follow the links to Local Court and Court forms.

How can I check if there is a judgment against me?

The first thing you need to do is ring the Local Court where the Statement of Claim was filed and check if there is a judgment against you and get the details of that judgment. If there is no judgment against you get legal advice immediately (see Getting Help details).

The next step is to get a copy of the following documents from the Local Court or the plaintiff:

1. Copy of the Statement of Claim filed in the Local Court. Make sure that the copy you get has been stamped by the Local Court.
2. A copy of the judgment by the Local Court

If there is a judgment against you, you should also ask the relevant court whether there is an affidavit of service on the court file. This will tell you where the Statement of Claim was sent or who, if anyone, it was given to, that is, how and when you were given or sent the Statement of Claim.

Can I get a judgment set aside?

You may be able to apply to the court to have the judgment set aside

You will have to:

1. Explain, using a Notice of Motion (Form 18) to the court why you failed to lodge a defence or did not attend court; and
2. File your notice of grounds of defence within a specified time. A sample of what a Defence Form, also known as Form 6, can be found at: www.lawlink.nsw.gov.au, follow the links to local court and court forms.

Depending on why the judgment occurred, you may have to pay the plaintiff's court costs.

If you do not have a defence to the debt then it is unlikely you will be able to have the judgment set aside.

How do I get a judgment set aside?

Step 1: Get legal advice on your defence. The defence must be good enough to convince the Court that your case is worth hearing. See Getting Help below and Fact Sheet: Filing a Defence for further information.

Step 2: Obtain a Notice of Motion (Form 18) which you can use as a guide and can be found at www.lawlink.nsw.gov.au and follow the links to Local Court and Court forms. This needs to be lodged so you can request a Stay of Proceedings. This means the person that you owe money to cannot take any further action in relation to your debt until your matter is heard.

Step 3: Complete the form and sign it where indicated.

How do I complete a Notice of Motion to Set Aside Judgment and For Stay of Proceedings?

See below.

Affidavit in Support of Notice of Motion

You will need to file an affidavit to support your Statement of Claim. This is also known as Form 32 and can be found at www.lawlink.nsw.gov.au, follow the links to Local Court and Court forms.

Completing the section titled: The reason why a defence was not filed within 28 days of the service of the summons.

Give the reasons why you did not file your defence within 28 days of receiving the summons (Statement of Claim).

For example, your reasons could be:
1. At the time of the service of the Statement of Claim I was living at 10 Smith Street Penrith
2. I had been living at this address for the past 5 years
3. The Statement of Claim was sent to my former address at 10 Smith Street Summer Hill

Completing the section titled: The reason why I say I have a valid defence to this action

You should briefly describe your defence or attach a draft defence which would be the defence you would file if judgment was set aside.

For example, your defence could be

1. The debt claimed by the plaintiff is not owed.
2. I repaid the debt to the plaintiff by cheque on [date].

Step 4: Lodge the form with the Local Court as soon as possible.