August 11, 2021
You sue somebody because they owe you money, or have caused you damages. They do not defend. What do you do next?
The answer depends upon the nature of your claim.
If you have a “liquidated claim”, you note the defendant in default, file some documents, and the Registrar issues a default judgment. Liquidated claims are for unpaid balances on an account, or where the amount owing is capable of simple mathematical calculation. You (or your lawyer) will have set out the amounts, including any calculations, in the claim. Since noting in default results in the defendant being deemed to have admitted the facts alleged in the claim, that may be all you need.
However, when the court talks about simple mathematical calculations, they mean really simple – like “the contract was to supply an unknown amount of lumber at $7.00 per board foot. I supplied 100 board feet of lumber for a total of $ 700.” Anything much more complex will likely require a motion for judgment.
A motion for judgment is also required for “unliquidated damages”. Those are amounts that are not fixed by an account, nor capable of simple calculation. Examples include damages for personal injury; damages in lieu of notice upon dismissal “wrongful dismissal”; or damage to property. It may also include certain breach of contract claims.
Sirju v. Amasis Construction Inc is a common example. In that case, the defendants had contracted to complete renovations to the Plaintiff’s home, but failed to complete the work, and some of what they did complete was alleged to be deficient (in need of being repaired or redone). Although the defendants were deemed to admit fault, that was not the enough to allow the plaintiffs to have the Registrar issue a default judgment.
This sort of claim raises questions that require evidence, such as:
- What amount was paid to the contractor?
- What was the value of the work properly completed by the contractor?
- What was the resulting overpayment, if any?
- How much did it cost to repair defective work?
- How much did it cost to complete the unfinished work?
- What extra expenses did the homeowner have (such as a stay in a hotel while repairs were done)?
- Were these costs reasonable?
If the answer to number 7 is “yes”, then the damages are 3+4+5+6. In this example, no general damages for inconvenience, or aggravated damages for mental distress, or punitive damages, are included. They are all extremely rare in breach of contract cases except insurance or employment claims, where they are still uncommon but less rare.
In Sirju, a motion for judgment was required. This motion does not require notice to the defendants, but must be supported by affidavit evidence explaining why the damages claimed are fair and proper. This includes information from the homeowners, plus, in this case, their daughter and likely the repair contractor. In some cases, the amounts need to be supported by expert evidence, which means that the affidavit must include enough information about the experience and qualifications of the witness to allow the court to be satisfied that they are qualified to give an opinion.
Selecting the appropriate evidence, and drafting the required affidavits is challenging without legal training. You may choose to represent yourself. With Small Claims Court at $35,000.00, this is attractive even in more sizable cases than prior years.
Lawyers will often charge a moderate flat price to obtain default judgment on your behalf, or a judgment by default. This may improve your recovery, and will almost certainly reduce your stress and time commitment. Even if you do intend to represent yourself, seeking some preliminary advice about what you need to prove, and how to prove it, may repay the cost several times over by helping you maximize your recovery.