In Billington v Davies, a claimant had made substantial payments to the defendant for investment in property development. The claimant alleged that the defendant had perpetrated a substantial fraud and misapplied the monies. A claim was issued, but the defendant failed to file a defence within the 28 day deadline. The claimant applied for judgment in default, and on the day before her application was heard, the defendant filed and served a defence.
The court refused a time extension for filing the defence, considering the impact of the filing of the defence on the claimant’s application for default judgment.
The defendant argued that the claimant could obtain judgment in default because a defence was in fact filed, albeit late. The judge rejected this argument, stating that the reference in the rules to a defence not being filed was to be interpreted as being a reference to a defence not filed within time.
This ruling will come as a relief to claimants who are either seeking or have obtained default judgment – it rubbishes the argument put forward by tardy defendants that a defence served late is as good as one served on time. In cases where defendants justifiably need to serve a defence late, they are well advised to obtain a time extension from the court prior to the defence being served late.