A default order is a judgment without a hearing. The Act accepts that some are wrongly obtained, and section 159 gives the defendant a direct route back into the case without an appeal.
The power
(1) Where an order is made under Section 157, the Court, whether consisting of the same Magistrate or not, at any time after the making of the order, on being satisfied by an affidavit or statutory declaration that the defendant has a good defence, may (a) set aside the order and reinstate the complaint and appoint a time and place for the hearing; and (b) where necessary (i) stay or set aside a warrant of execution on the order; or (ii) give leave to defend on such terms as to costs or otherwise as seem just.
(2) Notice of the application (a) shall be given by the defendant in writing to the complainant or his legal representative stating the time when, and the place where, the application is to be made; and (b) shall have attached a copy of the affidavit or statutory declaration in support.
(3) The notice and copy shall be served on the complainant not less than 48 hours before the application, in the manner prescribed for a notice of intention to defend, and the Court may entertain any answering affidavit or declaration from the complainant.
The steps
| Step | Detail |
|---|---|
| 1. Swear an affidavit or make a statutory declaration | Set out the facts of the defence, not just “I have a defence”; explain why no notice of intention to defend was given; say when you learned of the order |
| 2. Write a notice of application | Stating the date, time and courthouse; attach a copy of the affidavit |
| 3. Serve the notice and affidavit on the complainant | Personally or by post to the address for service, at least 48 hours before the date; keep proof |
| 4. File with the Clerk | The application is made to the Court; any magistrate may hear it |
| 5. Ask for a stay of execution at once if a warrant has issued | Section 159(1)(b)(i); otherwise the goods may be sold before the application is heard |
| 6. Attend and argue; the complainant may file an answering affidavit | If successful, the complaint is reinstated and a hearing date fixed, or leave to defend given on terms |
What must be shown
Although section 25 of the District Courts Act and the National Court’s default judgment rule are not the same, the wording is sufficiently similar and similar principles apply, so the District Court properly applied the National Court precedents that three conditions must be met to set aside a regularly entered default judgment: (1) an affidavit stating facts showing a defence on the merits; (2) a reasonable explanation why judgment was allowed to go by default; and (3) an application made promptly and within a reasonable time.
— Doherty J, PGNC 96 (1994)
That case concerned section 25, and the appellant argued that the “defence on the merits” requirement belonged only to section 159. The Court held the same principles govern both. Section 159 itself makes a good defence the statutory condition, and the Magistrates’ Manual treats the explanation and promptness as part of the discretion. An affidavit that simply denies the debt, without facts, will not do; an affidavit that says the goods were never delivered, or the loan was repaid on a stated date to a named person, will.
Orders that should never have been made
The three-part test is for a regularly entered order. Where the default summons was not served personally, or less than six days before the return date, or without the two notices, or was used for a claim that was not liquidated, the order was irregular and the defendant is entitled to have it set aside without showing a defence on the merits, although it is always wise to show one. The Manual warns that a defendant not properly served may not learn of the order until enforcement, and that is exactly the case in which section 159(1)(b) matters.
Terms
Leave to defend is commonly given on terms: that the defendant pay the complainant’s costs of obtaining the order and of the application, fixed within the Regulation scale; sometimes that the defendant pay part of the sum into court under regulation 29 as a condition. The Court may also, instead of setting the order aside, simply give leave to defend and fix the hearing, leaving the order in place but stayed. The defendant should propose terms that show good faith.
Section 159 and section 25
Section 159 applies to an order made on a default summons under section 157. An ex parte order made on an ordinary complaint, where the defendant did not appear at the hearing, is set aside under section 25 instead; the test is the same, but the procedure is less prescriptive. See setting aside an ex parte order. In Malipu v Laka (2025) N11322 the National Court emphasised that on such an application the District Court has only the powers the section gives: it may set aside and rehear, or adjourn; it has no power to dismiss for want of prosecution.
Or appeal?
A defendant may instead appeal to the National Court under section 219 within one month of the order. The section 159 application is almost always preferable: it is heard sooner, in the same Court, without a recognizance on appeal, and it can be made at any time. An appeal is the route where the section 159 application has been refused, and that refusal is itself an appealable decision.
The District Courts Act is not on PacLII; it is available on vLex.
Before relying on anything here, read the current text of the District Courts Act (Chapter 40) and check for later amendments. The Act is not on PacLII; the figures and time limits quoted in this series come from the consolidation to No 8 of 2000, and the District Courts (Amendment) Act 2009 changes some of them once it is brought into operation. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.