Many months ago, a client was served with a Plaintiff’s Claim, which they forgot to send our way to defend. After multiple attempts to obtain a default judgment (the Judge wanted additional evidence from the Plaintiff to prove their damages), the Plaintiff recently obtained a default judgment and immediately wrote to our client demanding payment. Oops.
The very next day, we wrote the Plaintiff to request their consent to set aside the default judgment to allow our client to bring a Defence. Their answer was no. They got their judgment, and they wanted their money.
We are now forced to bring a Motion to set aside that default judgment, which is now being heard in the middle of 2026.
If a Defendant brings a Motion to set aside the default judgment and the Court is satisfied that the party has a meritorious defence, a reasonable explanation for the default, and the Motion is made as soon as reasonably possible, the Court will more often than not set aside the default and any steps taken to enforce that default judgment.
To satisfy the Court that you have a meritorious Defence, a draft Defence must be included in the Motion. A Defendant simply has to show they have an arguable defence, which is a low threshold.
The frustration in dealing with self-represented parties is that consent is rarely provided, and the time for these Motions to be heard causes a significant delay in getting the matter back on track. If consent was provided, a Request for Clerk’s Order on Consent would be filed with the Court, and several days later, the Defence can be served and filed, and the matter is back on the list for a Settlement Conference.
We also provide a Summary of Law, which outlines why the Court will set aside the default judgment, which we hope provides the Plaintiff with enough information to consent before going to the Motion.
There may be some circumstances in which a Plaintiff may want to object to setting aside the noting in default. This is usually where multiple attempts have been made by the Plaintiff to enforce the judgment, which would have brought the default judgment to the attention of the Defendant, and when the Plaintiff’s “throw-away” costs are excessive and should be paid by the Defendant(s) as a term to set the default judgment.
Motions to set aside are frequently made and are typically granted on an almost routine basis, because it is not in the interests of justice to grant judgment on technical defaults. The Court wants matters tried and resolved on their merits with fairness to all parties, not just the Plaintiff who obtained a default judgment in the absence of the Defendant(s).
Murray Brown, Licensed Paralegal