2. Irregular default judgments

An irregular default judgment is a judgment entered without proper compliance with the rules of court or the law. Such judgments are procedurally defective and are liable to be set aside to prevent injustice.

Examples include:

the writ was not properly served;
judgment was entered before the time for acknowledging service or filing a defence had expired;
judgment was entered for an amount larger than was actually due;
the judgment granted relief which had not been pleaded;
judgment was entered against a minor or mentally incapacitated person before a proper representative was appointed; and
the acknowledgment of service relied on was invalid, for example because it was signed by an unauthorised person (e.g. an unauthorised corporate director).

General rule: setting aside as of right

An irregular default judgment should usually be set aside as of right.

This is different from a regular default judgment. If the judgment is irregular, the defendant generally does not need to show a meritorious defence or a real prospect of success before the judgment is set aside.

The reason is that the plaintiff should not have obtained the judgment in the first place if the required procedure was not properly followed.

The court’s residual discretion

Although an irregular judgment is often described as being set aside as of right, the right is not absolute. The court retains a residual discretion to take into consideration the conduct of the parties and other surrounding circumstances and decide whether to set aside the judgment or to impose terms upon setting aside the judgment.

It is exceedingly rare for the court to refuse to set aside an irregular judgment altogether. However, the court may impose conditions, especially where the defendant’s own conduct contributed to the situation.

Relevant factors may include:

whether the defendant deliberately evaded service;
whether the defendant made it difficult to locate or serve them;
whether the defendant delayed unreasonably after learning of the proceedings or the judgment;
whether the defendant’s conduct caused unnecessary costs; and
whether setting aside the judgment without conditions would be unfair to the plaintiff.

In such cases, the court may require the defendant to pay costs, comply with tight procedural directions, or pay money into court.

Where the judgment amount is wrong

Sometimes the judgment is irregular only because it was entered for too large a sum. For example, the plaintiff may have failed to give credit for payments already made by the defendant.

In that situation, the court does not necessarily have to set aside the whole judgment. It may amend or reduce the judgment to the correct amount.

The court is more likely to set aside the whole judgment if the defendant can show a real defence to the remaining balance, or if simply amending the judgment would cause prejudice.

Note: Once a plaintiff becomes aware a judgment sum is incorrect, he has a duty to apply for an amendment and should offer to pay the defendant's costs of rectification to protect his position on costs.

Application procedure

As with an application to set aside a regular default judgment, an application to set aside an irregular default judgment is made by summons to a Master and is usually supported by an affidavit/affirmation. The summons must specify the nature of the irregularity complained of.

An application to set aside an irregular judgment should identify the irregularity clearly. The supporting affidavit should explain the facts showing why the judgment was irregular.

Strictly speaking, the defendant does not usually need to provide an affidavit/affirmation of merits if the judgment is irregular. However, it is often sensible to set out the proposed defence as well, particularly if the plaintiff argues that the judgment should be allowed to stand or that conditions should be imposed. This allows the defendant to argue in the alternative that the judgment should be set aside on its merits even if the court finds the judgment was actually regular.

Costs where an irregular judgment is set aside

Where an irregular default judgment is set aside, the plaintiff will usually be ordered to pay the defendant’s costs. This is because the plaintiff obtained a judgment which should not have been entered.

However, the court may make a different order if the defendant contributed to the irregularity or acted unreasonably. For example, costs may be made “costs in the cause”, each party may bear his own costs, or the defendant may be required to pay some costs if his conduct caused the problem.