The Small Claims process may help recover what is owed to you.
If someone owes you money or property and you are having trouble with receiving what is owed to you, you may have to consider going through the Small Claims Court in order to reclaim it. These types of matters are routinely held in the Small Claims division of your Local Court, which can handle claims of up to $10,000 and are presided over by a Magistrate or Assessor. Disputes between landlords and tenants, or traders and consumers can alternately be addressed in the Consumer, Trader and Tenancy Tribunal (CTTT) which is a specialist tribunal that deals with disputes. The Local Courts have laid out an informal but important procedure which you should adhere to if you are trying to recover a debt or some item of property.
The first step is mediation. Over 80% of mediations result in an agreement, and free mediation is provided at local Community Justice Centres. At the very least, mediation gives you the opportunity to clarify the issues at hand and to attempt to understand each others situation. Lawyers are not required to be present for mediation, but it is necessary for you to understand your legal rights and responsibilities.
Mediation may prove unsuccessful, in which case the next step is to send a Letter of Demand. Often these letters will provoke the receiver to sort the matter out without going to court. These letters must include:
How much they owe you, and what it is for (or details of the property owing to you),
What steps you have already taken to recover it,
When you want the debt repaid or the property returned,
The action you will take if it is not paid.
If the letter doesn’t result in a solution, you need to file a Statement of Claim with the Local Court. It’s important to be aware of the risks and rules associated, such as whether or not they are able to repay you, and whether it is within the time limit for small claims, for example. If you choose to continue, the Statement of Claim form gives the receiver 28 days to do something about it. They can try again for mediation, they can arrange to pay the money either in full or by instalments, or they can deny the debt – which means moving towards court. If they ignore the letter, a judgment will be entered against them. A judgement is a court order confirming that they owe you the money or property, and may impact their credit history. If they elect to deny the debt, they must be able to prove their defence. It is recommended at this stage that each party seek some legal advice, although lawyers are not required at court.
When your matter proceeds to the Local Court, it will begin with a Pre-Trial Review, which is designed to attempt to reach settlement prior to the hearing. If that is unsuccessful, a date will be allocated for the hearing and case management orders will be made. These provide instructions for the introduction of evidence – which must be in a written format, and must be mutually exchanged no later than 14 days before the hearing. If this is not adhered to, the court may refuse to allow the material and may either dismiss the claim or strike out the defence. At the hearing, parties make submissions based on the evidence exchanged.
A defendant who is given a Local Court Order to pay may also have to pay extra levies, court costs or witness expenses. They are able to make payment in full or by instalment. If they are unable to pay, they can ask to file for an extension. If they don’t pay at all, they will be levied with an extra fine and the State Debt Recovery Office (SDRO) will take further action, which can include suspending or cancelling their drivers licence, taking money from their bank account or ordering them to perform community service.
Here at The Quinn Group we are able to assist or advise you with any Small Claims or Local Court matters. For more information regarding small claims or any other court matters, submit an online enquiry, or call us on 1300 QUINNS (784 667) or on +61 2 9223 9166 to book an appointment. You may also like to visit our dedicated All Court Matters website.