Commonwealth Consolidated Regulations

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Restriction on power to enter default judgment if certificate of service filed

             (1)  This regulation applies if:

                     (a)  a certificate of service of initiating process has been filed in the proceedings (being a certificate in due form, within the meaning of subregulation 21AH(2)) that states that service has been duly effected; and

                     (b)  the defendant has not appeared or filed a notice of address for service.

             (2)  In circumstances to which this regulation applies, default judgment may not be given against the defendant unless the court is satisfied that:

                     (a)  the initiating process was served on the defendant:

                              (i)  by a method of service prescribed by the internal law of the Convention country for the service of documents in domestic proceedings on persons who are within its territory; or

                             (ii)  if the applicant requested a particular method of service (being a method under which the document was actually delivered to the defendant or to his or her residence) and that method is compatible with the law in force in the country, by that method; or

                            (iii)  if the applicant did not request a particular method of service, in circumstances where the defendant accepted the document voluntarily; and

                     (b)  the initiating process was served in sufficient time to enable the defendant to enter an appearance in the proceedings.

             (3)  In paragraph (2)(b), sufficient time means:

                     (a)  42 days from the date specified in the certificate of service in relation to the initiating process as the date on which service of the process was effected; or

                     (b)  such lesser time as the court considers, in the circumstances, to be a sufficient time to enable the defendant to enter an appearance in the proceedings.

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