Obtaining a default order

SMALL CLAIMS FORMS RELATED TO THIS SUBJECT 

• Application for Default Order (SCR Form 5) 
• Application to a Judge (SCR Form 17) 
• Certificate of Service (SCR Form 4) 

WHAT IS A DEFAULT ORDER?

A Default Order is an Order made by the Small Claims Court without having to go through a full trial. A Default Order can be granted when a person who is being sued fails to file a Reply. A Reply is a document which lets the Court know that a person disagrees with the claims made against that person and will be defending the lawsuit. 

If a person is being sued for money, a Default Order can require the person to pay money. If a person is being sued for something other than money, a Default Order can require the person to do whatever the Judge thinks is appropriate. For example, if the lawsuit is for the return of property, a Judge can make a Default Order requiring the return of the property. 

WHO CAN OBTAIN A DEFAULT ORDER?

In Small Claims Court a Default Order can be obtained by: 

1. A Claimant if a Defendant fails to file a Reply. 
2. A Defendant against a Claimant if the Claimant fails to file a Reply to a Counterclaim. 
3. A Defendant against a Third Party who fails to file a Reply. 

AN OVERVIEW OF THE PROCEDURES TO OBTAIN A DEFAULT ORDER 

If the lawsuit is for a debt, a Default Order can be obtained against a Defendant merely by filing certain documents at the Court Registry. 

If the lawsuit relates to the matters listed below, a hearing in front of a Judge will be required. A hearing will be required to obtain a Default Order: 

1. For damages (that is, money to compensate for a loss or injury); 
2. For an Order for something other than money (for example, for an Order requiring the Defendant to return property); 
3. Against a Claimant as a result of a Defendant filing a Counterclaim for debt, damages or another kind of Order; and 
4. Against a Third Party as a result of a Defendant filing a Third Party claim for debt, damages or another kind of Order. 

Usually only the person wanting to obtain the Default Order will be at the hearing. The other party will not be there. The purpose of the hearing is to give the Judge the evidence the Judge needs to make the Default Order. 

OBTAINING A DEFAULT ORDER AGAINST A DEFENDANT FOR DEBT

WHEN CAN A DEFAULT ORDER BE OBTAINED?

A Default Order can be obtained after the time for filing a Reply has passed. If a Notice of Claim is served on a Defendant in British Columbia a Reply must be filed by the Defendant within fourteen (14) days. If the Notice of Claim is served outside of British Columbia, a Defendant has thirty (30) days in which to file a Reply. 

PROCEDURE TO OBTAIN A DEFAULT ORDER DEALING WITH DEBTS 

To obtain a Default Order against a Defendant: 

1. Wait until the time for filing a Reply (above) has passed; 
2. Find out from the Small Claims Court Registry that a Reply has not been filed. 
3. Complete two forms.
   • First you must complete a Certificate of Service Form. Click here to view a sample of a completed Certificate of Service form. This form proves when the Defendant was served with the Notice of Claim. 
   • You must also complete a form which is called an Application for Default Order.  Click here to view an example of a completed Application for Default Order. 
4. Once you have completed the forms they must be filed at the Small Claims Court Registry where the Notice of Claim was filed. 

OBTAINING A DEFAULT ORDER AGAINST A DEFENDANT FOR DAMAGES OR FOR AN ORDER FOR SOMETHING OTHER THAN MONEY 

To obtain a Default Order against a defendant for damages or for an order for something other than money, the following steps must be completed: 

1. Wait until the time for filing a Reply has passed; 
2. Prepare the evidence you will present to the Judge. You may wish to refer to Factsheet 13 which is called “Preparing for Trial.” It contains a section on how to prove the value of damage claims. It also contains valuable information about preparing for Court generally; 
3. Attend the Court Registry where the Notice of Claim was filed; 
4. Complete a Certificate of Service Form. Click here to view a sample of a completed Certificate of Service form; 
5. Complete an Application for Default Order form by filling in the names of the Claimant and Defendant at the top. The rest should be blank and will be filled in later.
6. Have the Court Clerk fill in the portion of the Application for Default Order Form which indicates when you must appear before a Judge; 
7. Appear before a Judge and obtain your Default Order (see next section); 
8. Prepare an Order (see below). 

APPEARING IN COURT 

Arrive in Court before the time required. When you arrive you should take a seat in the Courtroom.  

After Court is called to order, the Judge or Court Clerk will usually read through the whole list of the day’s cases. When your case is called stand up and inform the Judge that you are present. After the Judge reads through the list once, the Judge will begin to go through the list a second time. When he calls out the name of your case the second time, you should go to the front of the Courtroom. Stand when you speak to the Judge and address the Judge as “Your Honour.” 

You should say the following: “Your Honour, I am making an application for a Default Order.”   

Usually, you will then go into the witness box and be sworn to tell the truth. If your claim is for damages, you will then tell the Judge the facts which support the amount of your claim. You will also give any written evidence you have of the value of your claim to the Judge.   

In some cases, you may need witnesses to give evidence of the value of your claim. Those witnesses usually will give evidence after your have completed giving your evidence.   

The Judge will then either grant the Order you are seeking, tell you what further things you must do to obtain the Order, or refuse to grant the Order.

PREPARE AN ORDER 

If the Judge decides to grant the Order, then the Order must be put in writing. 

The bottom of the Application for Default Order form is used for that purpose. Sometimes the Judge (or Clerk) will fill in the Form. Other times, the Judge will order you to fill in the form. In both cases, the Judge must sign the Order in the box containing the words “By the Court.” Click here to view a sample of a completed Application for Default Order in which the Judge made an order for something other than money.   

After the Default Order part of the form has been filled in, the form must be filed at the Court Registry. 

HOW TO OBTAIN A DEFAULT ORDER AGAINST A CLAIMANT FOR FAILING TO FILE A REPLY TO A COUNTERCLAIM 

WHEN CAN A DEFENDANT APPLY FOR A DEFAULT ORDER AGAINST A CLAIMANT FOR FAILING TO FILE A REPLY TO A COUNTERCLAIM?

To obtain a Default Order against a Claimant for failing to file a Reply to a Counterclaim, a Defendant must first wait until the time for filing a Reply has passed. 

Service of a Counterclaim on the Claimant must be done by the Registrar of the Small Claims Court. According to Small Claims Rule 4(2) and Rule 3(5), service must be done within twenty-one (21) days of the filing of the Counterclaim. 

Before a Defendant can apply for a Default Order against a Claimant, a Defendant will probably have to wait for the twenty-one (21) day period to go by plus the time which the Claimant is given under the Rules to file a Reply. If the Claimant was served in British Columbia the Claimant will have fourteen (14) days to file a Reply. If the Claimant was served outside of British Columbia, the Claimant will have thirty (30) days to file a Reply. Thus, a Defendant will usually have to wait at least thirty-five (35) days from the day the Counterclaim was filed before an Application can be made to a Judge for a Default Order.   

PROCEDURE 

The procedure for obtaining a Default Order against a Claimant for failing to file a Reply to a Counterclaim is as follows: 

1. Wait until the time for filing a Reply has passed; 
2. Complete an Application to a Judge form. → See below if you want to read about how to fill out this form now;
3. Go to the Court Registry. File the Application to a Judge Form. 
4. Prepare for a hearing before a Judge; 
5. Appear before a Judge to ask for the Default Order;
6. Prepare the Default Order and file it at the Registry.

 

HOW TO OBTAIN A DEFAULT ORDER AGAINST A THIRD PARTY FOR FAILING TO FILE A REPLY TO A THIRD PARTY NOTICE 

WHEN CAN A DEFENDANT APPLY FOR A DEFAULT ORDER AGAINST A THIRD PARTY FOR FAILING TO FILE A REPLY TO A THIRD PARTY NOTICE?

To obtain a Default Order against a Third Party for failing to file a reply to a Third Party Notice, the Defendant must first wait until the time for filing a Reply has passed.   

The Third Party has fourteen (14) days to file a Reply if served in British Columbia, or thirty (30) days if served outside of British Columbia. If a Reply is not filed within the time allowed, the Defendant can make an Application to a Judge for a Default Order.   

The procedure for obtaining a Default Order against a Claimant for failing to file a Reply to a Counterclaim, or a Third Party for failing to file a Reply to a Third Party Notice, is as follows: 

1. Wait until the time for filing a Reply has passed; 
2. Complete a Certificate of Service. Click here to view a sample of a completed Certificate of Service form;
3. Complete an Application to a Judge form. → See the next section if you want to read about how to fill out this form now;
4. Go to the Court Registry. File the Application to a Judge Form. Also file the Certificate of Service. 
5. Prepare for a hearing before a Judge; 
6. Appear before a Judge to ask for the Default Order;
7. Prepare the Default Order and file it at the Registry.

 

PREPARE AN APPLICATION TO A JUDGE 

To apply for a Default Order against a Claimant or Third Party a Defendant must fill in an Application to a Judge Form. This Form is available for free from the Small Claims Court Registry or for a fee from legal stationery stores. 

Click here to view a sample of a completed Application to a Judge Form.   

If you refer to that Form you will see that there are only two parts of the Form which may be difficult to fill in. The first is the part that asks for details of the Order which is being asked for. The second is the facts upon which the Application is based.     

THE WORDS TO USE 

The words to use to describe the Order you want will depend on the claim being made against the Claimant or Third Party. 

NOTE: 

Use the words in brackets which apply to your case. 

1. If the claim is for a debt the words to use are:

“As the [Claimant or Third Party] [insert name of Claimant or Third Party], has not filed a Reply to a [Counterclaim or Third Party Notice] and the Defendant has proved that the [Claimant or Third Party] has been served with the [Counterclaim or Third Party Notice], the Court orders the [Claimant or Third Party] to pay directly to the Defendant the sum of [insert amount of money], plus interest and expenses.” 

2. If the claim is for damages (that is, money to compensate for a loss or injury) the words to use are:

“As the [Claimant or Third Party] has not filed a Reply to a [Counterclaim or Third Party Notice] and the Defendant has proved the [Claimant or Third Party] has been served with the [Counterclaim or Third Party Notice], the Court Orders the [Claimant or Third Party] to pay damages to be assessed, plus interest and expenses.” 

3. If the claim is for an Order other than for a debt or damages, the special Order being asked for in the Counterclaim or Third Party Notice should be filled in. 

FACTS UPON WHICH THE CLAIM IS BASED 

The section of the form which asks for the facts upon which the Application is based should include the following: 

1. The date and place where the Counter-claim was filed or the Third Party Notice was served; and 
2. A statement that the Claimant or Third Party has failed to file a Reply. 

THE NEXT STEP 

Obtaining a Default Order against a Claimant or Third Party is not the end of the lawsuit.   

The Court must still deal with the Claimant’s claim, which is found in the Notice of Claim which started the lawsuit. That claim may be resolved by negotiation or during a Settlement Conference.   

If it is not resolved at a Settlement Conference, then a Trial will be held. 

Prepared by Glenn Gallins 
Revised March 2008, links checked 2019
Funded by the PLE Program of the Legal Services Society