JUDGMENT IN DEFAULT OF DEFENCE
Default of defence by minor
113(1) Where no defence or Notice of Intent to Defend has been filed by a minor who has been served with a statement of claim, no further proceeding shall be taken against the minor, except by leave of the court. An application for leave to note an action for default or for judgment may be ex parte or on such notice as the court may require, and the court shall order such judgment to be entered as the plaintiff appears entitled to, with or without evidence of the truth of the statement of claim, (which may be given viva voce or by affidavit or otherwise as the court may direct) in the discretion of the court. (2) A plaintiff who has noted an action for default or has taken any further proceeding therein may apply ex parte for an order to set aside the noting or proceeding and, subject to the terms of such order, may then proceed under Subrule (1) of this rule. R. 113.
Default of defence
114(1) Where any defendant fails to deliver his Statement of Defence and the time for so doing has expired, the plaintiff may, on filing proof of service of the Statement of Claim, require the local registrar to note the default of such defendant.
Noting for default
(2) The local registrar shall thereupon endorse on the Statement of Claim and on the fly-leaf accompanying the court file the words “Noted for default the_______day of_________, 20___” and shall sign the same and make an entry in the procedure book that such default has been so noted. Am. Gaz. Oct. 25/91
No defence after default
(3) After default has been noted as aforesaid the defendant shall not file a defence without leave of the court.
Effect of noting for default
(4) On default being noted as provided in this rule, the plaintiff may enter judgment or take such other proceedings as he may be entitled to take on default of defence. R. 114.
Claim liquidated
115 Where the plaintiff’s claim is for a debt or liquidated demand only, and the defendant fails, or all the defendants, if more than one, fail, to defend thereto, the plaintiff may after the time limited for defence has elapsed, enter final judgment for any sum, not exceeding the sum claimed in the action, together with lawful interest, if claimed, and costs of action. R. 115.
Liquidated demand, Several defendants
116 Where the plaintiff’s claim is for a debt or liquidated demand only, and there are several defendants, of whom one or more defend and another or others of them fail to defend, the plaintiff may enter final judgment, as in the preceding rule against such as have not defended, and may issue execution upon such judgment without prejudice to his right to proceed with the action against such as have defended. R. 116.
Claim, detinue and damages
117 Where the plaintiff’s claim is for pecuniary damages only, or for detention of goods with or without a claim for pecuniary damages and the defendant fails, or all the defendants if more than one, fail to defend, the plaintiff may have the default noted as provided in Rule 114, and on an ex parte application of the plaintiff the court may assess the value of the goods and the damages, or either of them or order that they shall be ascertained in any way the court may direct, and judgment may be entered accordingly, or as the court may direct. R. 117.
Default judgment where more than one defendant
118 Where the plaintiff’s claim is as in the last preceding rule, and there are several defendants of whom one or more deliver a Statement of Defence to the Statement of Claim and another or others of them fail to defend, the plaintiff may proceed against the defendant or defendants so failing to defend by having the default noted as provided in Rule 114, and on the ex parte application of the plaintiff the value of the goods and the damages, or either of them, as the case may be, shall be assessed as against the defendant or defendants failing to defend, at the same time as the trial of the action or issue therein against the other defendant or defendants, unless the court shall otherwise direct. R. 118.
Claim, detinue and liquidated demand
119 If the plaintiff’s claim be for a debt or liquidated demand, and also for pecuniary damages or for detention of goods with or without a claim for pecuniary damages, and any defendant fails to deliver a Statement of Defence to the Statement of Claim, the plaintiff may enter final judgment for the debt or liquidated demand, interest (if claimed), and costs against the defendant or defendants failing to defend and have the default noted as provided in Rule 114 as to the balance of the claim and proceed as mentioned in such of the preceding rules as may be applicable. R. 119.
Claim recovery of land
120 In case a defence has not been delivered in an action for the recovery of land only, the plaintiff shall be at liberty to enter a judgment that the person whose title is asserted in the claim shall recover possession of the land together with the costs of the action. R. 120.
Claim other relief and recovery of land
121 In an action for the recovery of land when the plaintiff also claims any other relief he may enter judgment as in the last preceding rule mentioned for the land, and may proceed as in the other preceding rules mentioned as to such other relief; provided however that this rule shall not apply to proceedings taken under Part Thirty-seven. R. 121.
Judgment in other actions
122 In any other action upon default of defence by one or more defendants, the plaintiff may apply ex parte to the court for an order for judgment, and the court shall order such judgment to be entered as the plaintiff appears entitled to, with or without evidence of the truth of the statement of claim (which may be given viva voce or by affidavit) in the discretion of the court. R. 122.
Where several defendants some not served
123 Where in an action there are several defendants of whom one or more have been served, and another or others of them have not, the court may order the striking out of the defendant or defendants not served, and allow the plaintiff to proceed with his action against the defendant or defendants served, on payment of costs or otherwise as may be considered just. R. 123.
(The next rule is Rule 125)
Where a defence is delivered to part of claim only
125 If the plaintiff’s claim be for a debt or liquidated demand, or for pecuniary damages only, or for detention of goods with or without a claim for pecuniary damages, or for any of such matters or for the recovery of land, and the defendant delivers a defence which purports to offer an answer to part only of the plaintiff’s alleged cause of action, the plaintiff may by leave of the court enter judgment for the part unanswered, provided that the unanswered part consists of a separate cause of action, or is severable from the rest, as in the case of part of a debt or liquidated demand; provided also that where there is a counterclaim, execution on any judgment as above mentioned in respect to the plaintiff’s claim shall not be issued without leave of the court. R. 125.
Where more than one defendant
126 Where in any such action as mentioned in the last preceding rule there are several defendants, then, if one of such defendants make such default as aforesaid, the plaintiff may either (if the cause of action is severable) proceed against the defendant so making default as mentioned in the last preceding rule, or may apply for judgment against him at the time of trial or other final disposition of the action. R. 126.
Default by parties other than plaintiff or defendant
127 In any case in which issues arise in an action other than between plaintiff and defendant, if any party to any such issue makes default in delivering any pleading, the opposite party may apply to the court for such judgment, if any, as upon the pleadings he may appear to be entitled to, and the court may order judgment to be entered accordingly, or may make such other order as may be necessary to do complete justice between the parties. R. 127.
Judgment entered in excess of amount due
128 If upon any application to set aside a judgment entered under this part, it shall be made to appear to the court that such judgment has been entered for an amount in excess of that to which the plaintiff was entitled upon his pleadings or by the order of the court, the court, if satisfied that such judgment was entered by inadvertence for an amount in excess of that so due, may direct that the said judgment shall be amended as may be necessary and upon such terms as to costs or otherwise as may seem just. R. 128.
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