In response to a Statement of Claim, a defendant can file a Defence denying that they owe all or part of a debt. However, in some cases the defendant may file a Cross Claim as well as a Defence.
If a defendant only files a Cross Claim without also filing a Defence, the plaintiff can still get judgment against them for the amount of the plaintiff's claim. The defendant's Cross Claim will then be dealt with separately. If the defendant wants to defend the plaintiff's claim, they must file a Defence at the same time as the Cross Claim.
The Defendant might make a Cross Claim because they believe that the plaintiff owes them money, or that another person (known as a third party) owes some or all of the money claimed by the plaintiff.
This is a common situation with motor vehicle accidents involving more than two vehicles or involving vehicles that are not being driven by their owners. It also happens in other kinds of disputes.
Case study - Adam and Ben
Adam is involved in a car accident with Ben. Adam (the plaintiff) issues a Statement of Claim against Ben (the defendant), saying Ben caused the accident. Ben files a Defence saying he was not at fault and files a Cross Claim against Adam, saying Adam caused the accident and should pay for the damage to Ben's car.
Case study - Amber, Badar and Cai
Amber is involved in an accident with Badar and Cai. Amber (the plaintiff) issues a Statement of Claim against Badar (the defendant), saying Badar caused the accident. Badar files a Defence saying he was not at fault and files a Cross Claim against Cai saying that Cai caused the accident and should pay for the damage to both Amber and Badar's cars.
Case study - Paul and Dario
Paul, a plumber (the plaintiff) sues his customer, Dario (the defendant), for not paying for plumbing work done on his house. Dario files a Defence saying that he does not have to pay because Paul's work was so bad he had to hire another plumber to fix it. Dario also files a Cross Claim against Paul for the cost of the second plumber's work.
Making a Cross Claim
The Defendant will need:
You can get copies of forms from:
On the Statement of Cross Claim form, the defendant becomes the 'cross claimant' and the plaintiff or third party becomes the 'cross defendant'. The file number on the Cross Claim is the same as the file number on the Statement of Claim.
The rest of the Statement of Cross Claim form is filled out in a similar way to a Statement of Claim form. For more information, see
Instructions for filling out a Statement of Claim,
Sample Statement of Claim 1 and
Sample Statement of Claim 2.
When you file your Cross Claim, you will have to pay the filing fee. If you are making your Cross Claim as an individual, the filing fee is $97.00 (as at 1 July 2016). If you are making your Cross Claim as a representative of a company or association, the filing fee is $194.00 (as at 1 July 2016). Check the list of current court fees on the
Local Courts website. The filing fee for a Cross Claim is the same as it is for a Statement of Claim. You can pay by cash, credit card, EFTPOS or cheque. If you are paying by cheque it should be made payable to the name of the court. For example, Blacktown Local Court.
The Cross Claim must be filed in the same time limit as filing a Defence - 28 days from the date the defendant is served with the Statement of Claim. Usually, the defendant will file both their Defence and Cross Claim on the same day.
If a Cross Claim is not filed within this time, the defendant needs to get leave (permission) from the court to file a Cross Claim. The defendant would usually ask for leave at the Pre Trial Review.
The defendant will need to serve the plaintiff with a copy of the Cross Claim. If the Cross Claim is against a third party (that is not the plaintiff in the Statement of Claim) the defendant has to serve the third party (cross defendant) with a copy of:
The court may agree to send a copy of the Cross Claim to the plaintiff for you if you file your Cross Claim at the same time as your Defence. You should check with the court about this.
If a plaintiff disagrees that they owe money to the defendant, it is very important that they file a Defence to the Cross Claim within 28 days of receiving it. If they do not file a Defence to the Cross Claim, a default judgment may be entered against them for the Cross Claim amount.
To defend a Cross Claim, the plaintiff needs to fill out one form:
In the Defence form, the plaintiff becomes the 'plaintiff and cross defendant' and the defendant becomes the 'defendant and cross claimant'.
For more information, see
Instructions for filling out a Defence,
Sample Defence 1 and
Sample Defence 2.
If the plaintiff decides to defend the Cross Claim, the court will deal with the original claim and the Cross Claim at the same time.
Sometimes the defendant will say in their Defence that the plaintiff owes them money (based on the same reasons in the Statement of Claim or for a completely different reason) but will not file a Cross Claim.
If the court decides that the plaintiff owes money to the defendant, the amount the plaintiff owes will reduce any money that the court decides the defendant owes to the plaintiff. This is a 'set off'.
However, without a Cross Claim the court cannot order the plaintiff to pay money to the defendant. For example:
Case study - Patricia and Dennis
Patricia (the plaintiff) sues Dennis (the defendant) for not paying an invoice for $700 for the sale of goods. Dennis admits he didn't pay the invoice but says that Patricia did not credit him for goods he previously returned to Patricia, which were worth $600. If the court accepts that both parties have proven what they said, Patricia would only get a judgment for $100.
You should get
legal advice if you want to file a Cross Claim or if you are served with a Cross Claim.