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Serving the statement of claim

​If you have filed a statement of claim with the Local Court, you will need to serve it on the defendant. You must serve a stamped copy of the state​ment of ​​claim on the defendant within six months of th​e date you filed it ​at court. To find out ho​w to do this, follow the steps in the guide on this page.

AlertYou should make sure that the statement of claim is served properly and at the correct address. If it is not served properly, it will cost you time and money. For more information on how to find the defendant, see Finding and naming the defendant​.

Icon: Page with numbered listServing the statement of claim​ - Step by step guide​​ 

Step 1: Decide who will serve the statement of claim 

There are a number of different people who can serve the statement of claim.

  • ​You can serve the statement of claim yourself.
  • You can ask someone to serve the statement of claim for you.
  • You can ask the Local Court to post it to the defendant.
  • You can pay for a private process server to serve it for you.

The Local Court will charge you a fee of $42.00 (as at July 2017) per defendant for each address that it is posted to. 

A private process server can serve a statement of claim for around $30.00 to $80.00. You can claim back a maximum of $66.00 (as at July 2017) from the defendant if you win the case. To check the current court fees, go to the Local ​Courts website. 

​You can search for process servers in the Yellow Pages

Step 2: Serve the statement of claim

Different rules apply to serving a statement of claim: 

  • ​​on an individual
  • on a company
  • on a business
  • outside NSW.

Individual

To serve a statement of claim on a defendant that is an individual you can: 

  • ​hand it to the defendant
  • leave it in the presence of the defendant and explain what it is
  • leave it with a person at the defendant's home address who appears to be over the age of 16 years and living at that address
  • leave it at the defendant's work address, with a person who appears to be over the age of 16 years, if the defendant is a sole trader
  • ask the Local Court to post it to the defendant.  

Company

To serve a statement of claim on a defendant that is a company you can: 

  • ​hand it to a director of the company
  • post it to the registered office of the company. 

​For more information on how to find the registered office of a company, see Finding and naming the defendant.

Business 

To serve a statement of claim on a business operating under a business name you can:

  • ​hand it to the business owner
  • leave it with a person who appears to be over the age of 16 years and working for the business
  • post it to an address where the business operates.  

Outside NSW​​

If the defendant is in a state other than NSW you must still serve them with the statement of claim. You will need to add an extra section to your statement of claim called 'Service in Australia but Outside NSW'. You also need to add a notice to the end of the statement of claim. 

Sample: Sample statement of claim - interstate service

Step 3: Apply for substituted service, if you need to

Sometimes you might not able to serve a defendant in any of the ways set out in the court rules. For example, a statement of claim served by post may be returned to sender, or when you try personal service the defendant may have moved house.

If this happens, you could ask the court to make orders for substituted service. This means that the court gives permission for you to give the defendant the statement of claim in some other way. 

There is no set process in the Small Claims Division to ask the court to make orders for substituted​​ service. You can write a letter to the court explaining that you want to ask the court to make orders about substituted service and enclose an affidavit. The affidavit should:

  • ​​explain why you have been unable to serve the statement of claim form in the ways set out in the court rules 
  • explain what steps you have taken to try and locate the defendant 
  • explain the other ways that you think the statement of claim  could be brought to the attention of the defendant, for example by email or facebook. 

For more information, see Sample letter – substituted service and Sample affidavit – application for substituted service.

AlertIf you are having difficulty serving the defendant, you should get legal advice​.

Step 4: Confirm the date of service

For service by post on an individual or a company, the date of service is the fourth working day after it was posted. For service on a business operating under a business name, or a partnership, the date of service is at the end of seven days after it was posted. 

If your statement of claim form was posted by the court, you can call the court to find out the date it was po​sted. 

Step 5: Get the affidavit of service form

You will need one form:

  • Form 41: Affidavit of service 

You can get a copy of the form from:

You can file the affidavit of service online using the NSW Online Registry.

Handy hintIf you arranged for someone else to serve the statement of claim for you, such as a process server, they will give you a completed affidavit of service form. An affidavit of service is not required if you have paid the local court to post the statement of claim to the defendant.

Step 6: Fill in the affidavit of service form, if you served the statement of claim 

The person who served the statement of claim needs to fill out an affidavit of service form and sign it in front of a solicitor or a justice of the peace (JP). 

The affidavit of service describes ​how and when the statement of claim was served and is evidence for the court that the statement of claim was served. 

Instructions: Instructions for filling out an affidavit of service​
Sample: 
Sample affidavit of service 

Step 7: Wait 28 days

After you have served the statement of claim, the defendant may either:

  • ​pay the debt in full
  • apply to the court to pay by instalments 
  • file a defence
  • send a letter asking for further and better particulars (more information)
  • try to negotiate with you
  • do nothing.

If the defendant is going to file a defence, they should do this within 28 days of being served with the statement of claim. The court will send you a copy of the defence and a notice of when to go to court. For more information, see The defendant's response

If 28 days have passed and you have not received anything from the court or the defendant hasn't contacted you, you may apply to the court for an order givi​ng you judgment. This is called 'default judgment'. 

For more information, see Default judgment.