Introduction
Rescission of judgment is a crucial legal remedy available in the judicial system, allowing individuals or entities to seek the reversal or setting aside of a court judgment under specific circumstances. This article provides a short overview of what rescission involves when it is applicable, and how to successfully pursue it.
What is Rescission of Judgment?
Rescission of judgment refers to the process of nullifying a court order or judgment, effectively rendering it void and without legal effect. This procedure is typically pursued when the judgment in question has been issued in error or under circumstances that justify its reconsideration.
When to Rescind a Judgment
Rescission may be necessary in several scenarios:
Non-service of Documents: If the party against whom the judgment was issued was not properly served with court documents, they may have grounds for rescission.
Existence of a Valid Defense: If the judgment debtor has a valid defense that was not considered due to their absence or failure to respond, rescission can be sought.
Procedural Errors: Any errors in the legal process that could have unfairly affected the outcome may also be grounds for rescission.
New Evidence: If new, substantial evidence comes to light that could alter the outcome of the case, a party may apply for rescission.
How to Rescind a Judgment
The process of rescinding a judgment involves several key steps:
Filing an Application: The first step is to file a formal application for rescission with the court that issued the original judgment. This application must be supported by an affidavit detailing the reasons for the request.
Serving the Application: The application must be served to the opposing party, giving them an opportunity to respond or oppose the rescission.
Hearing: The court will schedule a hearing to consider the arguments from both sides. During the hearing, the applicant must demonstrate that there is a legitimate basis for rescission.
Court Decision: Based on the evidence and arguments presented, the court will decide whether to grant the rescission.
Legal Requirements
To succeed in a rescission application, the applicant must prove:
A Legitimate Ground for Rescission: The reasons for seeking rescission must be compelling and legally recognised.
Timeliness: The application must be made within a reasonable time (20 days since obtaining knowledge of judgment).
Good Faith: The application should not be made merely as a tactic to delay or frustrate the enforcement of the judgment and the applicant should not be considered in wilful default.
Conclusion
Rescinding a judgment is a potent legal tool that can correct errors and ensure fairness in the judicial process. If you believe a judgment against you was wrongly issued, or if new facts have emerged that justify revisiting the decision, it may be appropriate to consider rescission. Should you have any questions or require assistance with rescinding a judgment, feel free to reach out to Gittins Attorneys. Our experienced legal representatives are equipped to guide you through the process and provide the support you need to assert your rights effectively.
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