Application for order in default of defence (Form 21A)

Under rule 21.01(1) of the Magistrates' Court General Civil Procedure Rules 2020, if a defendant does not give notice of defence within 21 days after service of the complaint (or any other time fixed by the Court), the plaintiff may apply for an order, and the application must be in Form 21A (r 21.01(2)). It must be filed with the registrar with an affidavit or declaration of service of the complaint and, unless the claim is for a debt, a liquidated demand or a motor vehicle claim for repair costs or total loss only, an affidavit verifying the claim and the loss suffered (r 21.02). The registrar can make the order on a debt-type claim; other claims are referred to the Court (r 21.04).

When you need it

• You served a complaint and the defendant has not given notice of defence within 21 days of service.
• Your claim is for a debt or liquidated demand, which the registrar can usually deal with on the papers (r 21.04(1)).
• Your claim is for unliquidated damages; you can still apply, but you need an affidavit verifying the claim and the matter will be referred to the Court (rr 21.02(b), 21.04(4)).
• Not if the defendant has filed a defence; the court's guide says you cannot then apply for a default judgment.

1. 1

   Fill in the heading and nature of claim

   Copy the court number, venue and party details from the complaint, add your filing details, and briefly state the nature of the complaint (for example, unpaid invoices).

2. 2

   Check the statements in paragraphs 1 to 3

   The form states that the plaintiff applies for an order, that no notice of defence has been given, and that an affidavit or declaration of service of the complaint has been filed. Make sure each is true before signing.

3. 3

   Claim

   Enter the amount claimed, deduct anything paid since the complaint was issued, and show the balance.

4. 4

   Interest

   Enter the date the complaint was issued and calculate interest for each period by days and rate. Attach a schedule if the calculation needs more room.

5. 5

   Costs

   List professional costs, the fees on the complaint and the application, service, attempted service, distance and search fees, and any affidavit or other costs, then deduct any costs paid. The registrar fixes costs and interest in line with Appendix A of the Rules (r 21.04(2)).

6. 6

   Sign and date

   The plaintiff or the plaintiff's Australian lawyer signs.

• File the application with the registrar (r 21.02) at the court where the complaint was made. The court's guide says this can be done in person or by post, and a fee applies - check the current civil fees page.
• File with it the affidavit or declaration of service of the complaint, and for non-debt claims an affidavit verifying the claim and the injury, loss or damage (r 21.02). If not already filed, the court's guide also lists Form 4A and Form 4B.
• An application filed electronically may be processed by the court's case management system (r 21.03).
• The registrar will notify you of the order made or the Court's decision (r 21.04(7)). You can then take enforcement steps.

• The court's guide says an affidavit in support must contain only facts within the deponent's own knowledge, not information and belief.
• Check your interest and cost figures against the complaint: the registrar will not allow more than the rules permit.
• A default order can be set aside or varied by the Court (r 21.07), so accurate figures and proper service matter.