The Statement of Claim is valid, and able to be served, for 6 months after the date it was filed at court.
Serving the Statement of Claim is the way you tell the defendant that you are making a claim and gives them an opportunity to defend the claim.
Under the court rules, personal and postal service are equally valid. Remember that only the court can serve an individual defendant by post. There is a risk that if you serve the Statement of Claim by post or leave it with someone else at the defendant's home or place of business, the defendant may not receive it. If you get a default judgment against the defendant, the defendant may later apply to have the default judgment set aside because they did not receive a copy of the Statement of Claim.
Personal service can cost more than postal service if you pay a process server to serve the Statement of Claim. If you or a friend serve the Statement of Claim, you may have to try several times before you find the defendant at home or their place of business.
For more information, see
Serving the Statement of Claim,
Default judgment and
Responding to an application to set aside a default judgment.
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 running 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 was posted by the court, you can call the court to find out the date it was posted.
If the defendant remains inside their home or business and refuses to answer the door or gate when someone is trying to serve court documents, this is called 'keeping house'.
The court rules say that if a defendant is keeping house, the person serving the Statement of Claim can leave it in the letter box, or pin it to a door, or pin it to a surrounding fence or wall. You have to post a letter to the defendant within 24 hours to tell them where the Statement of Claim was left.
The Affidavit of Service needs to:
If you or the person trying to serve the Statement of Claim are the victim of violence or threats of violence, the Statement of Claim can be left as close as possible to the defendant without putting yourself at risk.
The Affidavit of Service should describe the violence or threats and explain where the Statement of Claim was left.
Sometimes a plaintiff is 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.
In these circumstances, 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 could 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:
For more information, see
Sample letter and affidavit - Application for Substituted Service. If your claim is about a car accident, see
Sample letter and affidavit - Application for Substituted Service - Car Accidents.
Yes, you can file a claim in the Local Court against a defendant who doesn't live in NSW but lives in Australia. However, you should get
legal advice before you do this.
You serve the Statement of Claim in the same way as you would serve the document in NSW. 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, which is required under the
Service and Execution of Process Act 1992 (Cth). For more information, see
Sample Statement of Claim 3 - Interstate service.
If your claim is about a car accident and the defendant lives outside of NSW, see
Sample Statement of Claim service outside of NSW - Car Accidents.
If the defendant does not file a Defence, you can get a default judgment in the usual way. Once you have a default judgment, you can register it in the equivalent of the Local Court in the state where the defendant lives and enforce it under the rules of that court.
The defendant may ask the court to stop the case on the ground that the claim should have been filed in the other state. You should get
legal advice if this happens.
No, if your case is in the Local Court you cannot serve the Statement of Claim overseas. If you are in this situation, you should get