Frequently Asked Questions

Does someone owe you money?​

1. Can I serve a defendant who is an individual with a statement of claim at a PO Box address?

• 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.

If you are having trouble serving the defendant with the statement of claim, get legal advice. 

2. What happens if the Local Court served the defendant by post and subsequently received a 'return to sender'?

If the Local Court receives the returned unopened envelope from Australia post and is marked "not delivered to the addressee" then the statement of claim is deemed to have not been served. This means that you may need to find an alternate way of trying to serve the statement of claim according to the court rules. If this happens, you will be notified by the court. 

For more information, see Serving the statement of claim. 

3. I have filed a statement of claim in the Small Claims Division of the Local Court and served it. What happens now?

After you have filed and served your statement of claim, the next steps in your case depend on what the defendant does.

The defendant may:

• ​​file a defence
• file an acknowledgment of liquidated claim
• pay some money (either all the amount you claimed or some of it), or
• do nothing.

For information on these options, see The defendant's response. If the defendant files a defence you will be given a copy. Your case will then be listed in court for a pre-trial review. For more information on what happens after a defence is filed, see Pr​​e-trial review​.

4. Can we settle the case before the hearing?

If the parties have reached an agreement, you can settle the case without the court hearing evidence and making a decision.

The plaintiff and the defendant may agree that the defendant will pay the whole or part of the debt, or agree that the plaintiff no longer seeks payment of the debt. The plaintiff and defendant can also agree on payment by instalments.

The parties need to tell the court about any settlement agreement. Usually, the parties will hand up written terms of settlement at court or file a consent judgment. For more information, see Settling your ca​se​.

All parties must be notified of an agreement before entering into a consent judgment.

5. Can the defendant change the location of the court?

If you have filed the statement of claim in a court far from where the defendant lives, the defendant may ask the court to move the case to a court closer to them. 

The defendant must file a form called notice of motion - change of venue. They must also serve this notice on you.

If you receive a notice of motion and you do not agree that the court location should be changed, you can file an affidavit outlining your reasons within 14 days of receiving the notice. 

The court will decide 14 days after sending you the notice and without you or the defendant appearing in court. The court will send you a letter telling you whether the case will be moved or not.

The Local Court considers the appropriate court for a matter to be:

• ​​​the court closest to where the other party lives, works or runs a business
  
• the court closest to where the other party lived, worked, or ran a business at the time of the event of the case
• he court closest to where the event occurred that led to the case.

The court may not change the court location if the new court is less than 100kms from the current court unless there are exceptional circumstances.

6. Can my case be transferred from the Small Claims Division to the General Division?

Court cases that are started in the Small Claims Division can be transferred to the General Division if:

• the issues in the case are complex, difficult or of such importance that it is more appropriate for the case to be decided in the General Division, or
• there is a cross-claim for more than $20,000.

Cases can be transferred from the General Division to the Small Claims Division if:

• any complex, difficult or important issues have been resolved (either completely or partly), or
• it is appropriate to do so.

7. Do I need to tell the court if I move to a different address?

The court must have a current address where court documents can be left for you or mailed to you. This is your address for service. 

If you move, or change your postal address, at any time during your case, you need to tell both the court and the other party. 

You can do this by filing a notice of change of address for service with the court, and serving a copy of the notice on the other party in person, by post or fax.

You will need one form: 

• ​Form 76 - Notice of change of address for service  

You can get copies of the form from: 

• ​your nearest Local ​Court or
  

• the Uniform Civil Procedure Ru​les (UCPR) website. 

8. What happens if there is a consent judgment and the defendant doesn't pay the money?

A consent judgment is just as enforceable​ as a court judgment. If the defendant does not pay the judgment debt, the plaintiff can take action through the court to enforce the consent judgment. However, the court cannot enforce anything other than an agreement to pay a fixed amount of money. For example, the court cannot enforce a promise to fix unsatisfactory work or replace faulty​ goods.

For more information, see Consent judgment and Enforcement​.

9. Do I have to send an examination notice before I file an examination order?

​Yes. You must give the judgment debtor at least 28 days to respond to the examination notice before filing a notice of motion - examination order. For more information, see Examination notice and Examination order​. 

10. I have a judgment from the Local Court but the debtor still has not paid me. How can I force them to pay me?

If you have a judgment and the debtor still does not pay, you can take action to try and make the judgment debtor pay the debt. This process is called 'enforcement'.

There are a number of ways you can enforce the payment of a debt: ​

• ​​​​Writ for levy of property. This allows the sheriff to take and sell property.
• Garnishee order. This is an order that money be taken out of the debtor's wages or a bank account.
• Examination notice. This is a notice asking the debtor to provide information on their financial situation.
• Bankruptcy or winding up a company.

If you are considering trying to make the debtor bankrupt or winding up a company you should get legal advice. Bankruptcy can be expensive and complicated.

For information on options for enforcing the judgment see Enforce​ment​.​

11. Can all the judgment debtor's property be taken and sold? 

The sheriff may take your personal property except essential household items and other items that are protected by bankruptcy laws. For example, the sheriff cannot take:

• kitchen items like cutlery, heating and cooling equipment
  
• toiletries like towels, brush and razor
  
• sufficient furniture and beds
  
• educational and sports items for children or students in the home
  
• at least one television set, stereo equipment, radio, video recorder
  
• a washing machine and clothes drier
  
• a refrigerator and freezer
  
• safety equipment like fire detectors and extinguishers.
  

The sheriff also cannot take tools you need to earn an income and motor vehicles you need for transport unless it is above the limit set by bankruptcy laws. This limit is called the 'indexed amount'. The indexed amount changes every financial year and it is currently (as at 1 July 2022):

• $3,950 for tools
  

• $8,550 for motor vehicles.

The indexed amount for motor vehicles is not the total value of the vehicles. The amount is the total value of the vehicles minus the sum that you owe under finance.

For more information, see Indexed amounts on the Australian Financial Security Authority website.

In the Small Claims Division of the local court, a judgment creditor can only apply for a writ for the levy of property against personal property and not land.

For more information, see Writ for the levy of property​.

12. What if some of the items seized by the sheriff belong to someone else?

After the sheriff has seized (identified) items at the judgment debtor's home, the sheriff will give the judgment debtor a Notice to the Custodian. This Notice has a list of all the seized items attached. There may be some disputed items on the list. These disputed items could belong to friends or family members of the judgment debtor. 

It is up to the owner of the disputed items to contact the sheriff and tell the sheriff that the items don't belong to the judgment debtor. The owner will need to prove that they own the disputed items. 

The sheriff will give you this evidence and you have 4 days to decide if you want the sheriff to sell the disputed items or give them back to the owner. 

If you tell the sheriff to sell the disputed items the sheriff will apply to court, using an 'Interpleader Motion', and ask the court to decide whether the sheriff should give the disputed items back or sell them. 

If this situation happens to you, you should get legal advice​.

Are you being chased for money?

1. I was served with a statement of claim and it has been more than 28 days. Can I still file a defence if I disagree with the claim?

Yes, as long as default judgment has not been entered. You should contact the court where the statement of claim was filed immediately and ask whether default judgment has been entered against you.

If judgment has been entered against you, you can make an application to set aside the default judgment. For more information, see Setting aside a default judgment​.

If default judgment has not been entered against you, you should contact the plaintiff or their solicitor. You can tell them that you will be filing a defence and ask that they not apply for default judgment during this time. You should put this in writing. You should then immediately attend to filing your defence. You can also write to the court and tell them that you have contacted the plaintiff and that you will be filing a defence.

2. What can I do if I have been served with an amended statement of claim?

If you have not yet filed a defence before you received the amended claim, you can file a defence within 28 days of being served with the amended statement of claim.

If you have already filed a defence, you may be able to file an amended defence to the amended statement of claim.

If the plaintiff was granted leave (permission) by the court to file the amended statement of claim, you should get legal advice about seeking leave to file an amended defence. If the court grants an order for you to file an amended defence, you should file your amended defence, by the date the court has ordered.

The plaintiff can file an amended statement of claim within 28 days of filing the claim. The plaintiff can only amend their claim once without leave (permission) of the court. If this happens and you have been served with an amended statement of claim, and you have previously filed a defence, then you can file an amended defence within 14 days of being served. You do not need the permission of the court to do so. 

For more information, see Changing your defence.

If you are unsure as to whether you should file an amended defence, you should get legal advice. 

3. I have received a statement of claim but I don't understand it. I don't know anything about this debt they say I owe. What can I do?

You can write to the creditor and ask for more information about the debt, for example, copies of contracts, statements, invoices and letters. This is called a 'request for further and better particulars'. For more information, see Responding to a statement of claim​.

4. I received a statement of claim for an unpaid credit card debt. What options are available to me?

If you were served with a statement of claim for a consumer credit debt, you should get urgent legal advice. If you haven't already, you can contact the Australian Financial Complaints Authority (AFCA) to make a complaint or negotiate with your lender.

If you make a complaint to AFCA, your lender must stop taking any action against you.

​​For more information, see External dispute resolution.

5. I received a statement of claim but I am bankrupt. What should I do?

If you are bankrupt you should contact your Trustee immediately. If you do not know who your Trustee is, contact the Australian Financial Security Authority​. 

6. How do I change the location of the court?

If the plaintiff filed a statement of claim in a court far from where you live, you can ask the court to move the case to a court closer to you. 

You can file a form called notice of motion - change of venue and serve this form on the plaintiff. 

The plaintiff may file an affidavit within 14 days if they do not agree that the court location should be changed. 

The court will make a decision and send you a letter telling you whether the case will be moved or not.

The Local Court considers the appropriate court for a matter to be:

• ​​​​the court closest to where you live, work or run a business
• the court closest to where you lived, worked, or ran a business at the time of the event of the case
• the court closest to where the event occurred that led to the case.

The court may not change the court location if the new court is less than 100kms from the current court unless there are exceptional circumstances.

7. Do I need to tell the court if I move to a different address?

If you move, or change your postal address, at any time during your case, you need to tell both the court and the other party. 

You can do this by filing a notice of change of address for service with the court, and serving a copy of the notice on the other party in person, by post, fax or email. 

You will need one form: 

• ​Form 76 - Notice of change of address for service 

You can get copies of the form from: 

• ​​your nearest Local Court or
  

• the Uniform Civil Procedure Rules (UCPR) website.​

8. Do I have to go to the pre-trial review?

​You must go to the pre-trial review.  

If you are unable to go to the pre-trial review, you should contact the court and ask to attend by telephone. 

If you are sick or there is an emergency that stops you going to the pre-trial review, you should try and send a fax to the court before 9.30am telling the court why you cannot attend and asking for it to be postponed to another date. You may be ordered to pay the costs of the other party for their time wasted.  If you do not contact the court, your defence could be struck out. For more information, see Pre-trial review.

9. How can we settle the case before the hearing?

You can settle the case by negotiation or mediation. If you reach an agreement with the plaintiff, you should put your agreement in writing.  

The parties need to tell the court about any settlement agreement. Usually, the parties will hand up written terms of settlement at court or file a consent judgment form. For more information, see Settling the case​.

All parties must be notified of an agreement before entering into a consent judgment.

10. The sheriff has contacted me. The sheriff says that a company has default judgment against me. I didn't know there was a court case against me and I don't think I owe this company any money. What can I do?

A judgment is an order from the court. A default judgment is an order made without you being there.

If you did not know about the case and you would now like to defend the case you can apply to the court for the order to set aside the default judgment. If the court sets the default judgment aside you will then have a hearing in your case.

If there is a default judgment against you, get legal advice before taking any steps.

For more information on your options when a judgment is made against you, see After court and Responding to a writ for the levy of property. 

For more information on setting aside a default judgment, see Setting aside a default judgment​.

11. I have a judgment against me. I agree I owe the money but I cannot pay. I am worried about what is going to happen now.

A judgment is an order from a court to pay money to the creditor. If you do nothing and do not pay the debt, the creditor can take steps to force you to pay. This is called enforcement. For more information about the steps a creditor can take to enforce a debt see, After court.

​If you cannot pay the judgment debt, there are some things you can do. You could negotiate with the creditor to pay the debt. See Negotiating after judgment for information. If the creditor will not negotiate you can make an application to the court to pay the debt off by instalments. For information on making this application, see Paying by instalments after judgment​.

Once an instalment order is made, and as long as you pay the instalments, the creditor cannot take any other steps to enforce the debt. 

12. I went to collect my pay and my boss told me that some of the money was taken out to pay someone I owe money. Is he allowed to do this?

If your employer receives a garnishee order they must comply with it. You should be left with a minimum weekly amount of $563.40 per week (as at 1 April 2023).  Your employer can keep $13.00 and the rest of your wage must be sent to the judgment creditor.

Your employer will continue to deduct money from your wages until the whole of the judgment debt plus interest has been paid or until the court stops the garnishee order.

​For more information, see Responding to garnishee orders​.

13. I get Centrelink benefits. Can the judgment creditor take my Centrelink money from my bank account?

It is possible for the judgment creditor to take your Centrelink payments from your bank account. However, the judgment creditor cannot take the 'saved amount' or the 'minimum balance amount', whichever is the higher amount.

The 'minimum balance amount' is currently $563.40 per week (as at 1 April 2023). The 'saved amount' is your Centrelink payments for the four weeks before the garnishee order was made minus anything you have withdrawn from the account in that four weeks. If a judgment creditor is trying to garnish your bank account and you get Centrelink benefits, you should get legal advice. 

For more information, see Responding to garnishee orders​.

14. Can I make a deal with the sheriff regarding the debt?

You can't make a deal with the sheriff about the debt. The sheriff is an officer of the court so the sheriff works for and takes instructions from the court.

You can contact the judgment creditor or their lawyer to arrange to pay the amount you owe in a lump sum or by instalments. You can also apply to the court to pay the judgment debt by instalments. For further information, see Responding to a writ for the levy of pro​perty​.