Text Size a a PrintPrint this page

When you are served with a claim

 

If I owe someone money, what are the advantages for them in taking me to court?

Often a creditor will approach you about payment of a debt by talking to you to reach an agreement or by sending a letter of demand. If these ways don't work, if the creditor believes the best way to get their money from you is to take you to court and get a court order ("judgment") against you, you may receive a "claim". If you have received a general procedure or minor case claim, see below for some of the options you have.

If there is an agreement and you don't follow the agreement, the creditor could go to court to get a judgment.

With a judgment, a creditor has more options to get the money back. For example, they can ask the court to take money out of your wages, take your goods, or sell your house.

If the creditor starts a claim in the Magistrates Court they are called the claimant. The person the claim is against is called the defendant.

What are the possible disadvantages for me if the case goes to court?

If you are found by the court to owe the money you may have to pay court costs, interest and in some cases legal costs.

After I receive the claim, how long do I have to respond?

Read the claim carefully.

It will state the time limit for entering your defence. You only have a certain period of time to respond to the claim.

This time starts when you are served with the claim form.

For more information on time limits for responding go to Time limits to respond to a claim.

What if I don't get my response in on time?

If you fail to respond to the claim within time, the claimant can ask the court to enter judgment against you just by lodging an application. This means asking the court to decide you owe the money claimed.

Can I lodge my response late?

Yes, if the claimant has not applied for a default judgment you may still lodge the response even if the time limit for lodging it has expired. It is rare for the claimant not to apply for a default judgment as soon as the time for entering a defence has expired.

Where do I lodge my response?

You should lodge your response or any consent order form at the Magistrates Court where the claim was started.

What are my options in responding?

You have several choices depending on whether you agree you owe some, all or none of what is claimed. You can:

  • Defend the claim. This means you do not agree with the claim (see heading below What if I disagree with all of the claim?).
  • Agree you owe the full amount of the debt and costs:
      • pay the claim in full immediately
      • make an offer of repayment.
  • Agree you owe part of the debt and costs
      • lodge the response within the time period indicating you will defend the balance of the claim at the court (see heading below What if I agree I owe part of the debt?)
      • lodge the response within the time period indicating you will defend the balance of the claim at the court and make an offer as full satisfaction of the claim.
  • Admit liability for an unspecified claim but dispute the amount claimed
      • lodge the response indicating this.
  • Ignore the claim (Legal Aid WA does not advise this option).

Should I get legal advice?

You should get legal advice about:

  • whether you have a defence to the claim, including whether it is within time
  • your chances of success at trial
  • what costs are involved.

In some cases you may need legal advice on whether you have a counterclaim.

In a minor case claim a lawyer can represent neither you nor the claimant unless all parties or the court agrees. You can and should still get initial advice from a lawyer.

What if I disagree with all of the claim?

If you do not agree with the claim against you and want to defend it, you should:

  • fill in the 'Intention to Defend' section on the 'Response to a Claim' form, and
  • lodge it at the court within the time limit stated in the form. 

If you don't lodge your response within the time limit, judgment can be entered against you.

The claimant cannot take further action until this period is over.

If there is no time to get legal advice before the time limit runs out, and you believe the claim is wrong, you should:

  • fill in the 'Intention to Defend' section
  • lodge the response form at the court
  • get legal advice as soon as possible.

Keep a photocopy of the claim and the response.

What if I think the claimant owes me money?

Get legal advice. You may defend the matter and lodge a "counterclaim" or claim a "set-off" if you believe:

  • the claimant owes you money or damages, or
  • the claimant's claim should be reduced by an amount they owe you.

It is important to seek legal advice before making a counterclaim or claiming a set-off.

What if I agree I owe all of the amount claimed?

You can pay the claim including costs in full. Payment should be made to the claimant or their lawyer before the date your response is due.

Or if you admit the claim is owed and want to put forward an offer of payment you can:

  • fill out the 'Admission of Claim' section on the 'Response to a Claim' and sign it
  • lodge the response at the court within the time period
  • keep a copy.

You should include any offer to pay in full or by instalments. Think carefully about what you can afford to pay. Any offer to pay by instalments should be realistic.

Judgment will be entered into the court's records against you for the debt and the costs.

The claimant can enforce a judgment made this way in the same way as if it were a decision by a magistrate at trial.

You can contact the claimant before you lodge your 'Admission of Claim' to arrange how to pay the debt.

Where do I pay the money?

If you can pay the claim in full, the payment must be made direct to the claimant or their lawyer. Make sure you get a receipt and keep it as a record you have paid. Do the same with payments by instalment. The court does not handle payments.

What if the claimant won't let me repay by instalments?

The claimant may accept your admission but does not have to accept your proposal for repayment by instalments.

The claimant can go ahead to enforce the total judgment debt. The court will decide if you can pay in full or by instalments or in some other way. For more information see If a judgment is made against you - enforcement process.

What if I agree I owe part of the debt?

If you do not owe the claimant the whole amount claimed, you may admit to part of the claim. To do this:

  • Complete the 'Notice of Intention to Defend' section, ticking the box next to 'I admit to part of the claim for $ and give Notice of Intention to Defend the balance of this claim'. You can also make an offer in full satisfaction of the claim.
  • Lodge the response at the court within the time period.
  • Keep a copy.

Get legal advice if you are unsure which section to complete.

The claimant may accept your admission.

If the claimant refuses to accept your admission to part of the debt then the case will continue through the court.

At trial the claimant will still have to prove that you owe them the whole amount. For example, they cannot argue that because you agreed to $1,000 of a $5,000 claim that they must now only establish that you owe the remaining $4,000.

If the claimant is prepared to accept the amount you have admitted to as satisfying their claim, judgment will be entered into the court's records for the amount you admitted and costs.

Can I contact the claimant to try to reach an agreement?

When you receive the claim you may want to contact the claimant or their lawyer to see whether a settlement can be reached by consent. If you reach an agreement you and the claimant should complete a consent order form and return it to the court where the claim was started.

What if I admit liability but dispute the amount claimed?

This can happen when an unspecified amount is claimed when an exact amount is not known at the time the claim arose, eg with damage from a motor car accident.

You need to lodge your response indicating you admit liability but that you do not agree to the amount sought and apply to the court to work out the amount that should be awarded for the claim.

The registrar will list the case for a pre-trial conference and let you and the claimant know in writing.

What if I ignore the claim and do nothing?

If you don't lodge a response at the court within the time stated on the form, the claimant may apply for a default judgment to be given against you for the claim, interest and costs.
An application for a default judgment should be made within 12 months of the date the claim was served on you however it can be made at a later date if approval is given.

For more information on default judgments go to Getting judgment without a trial.

Is there anything I can do if a default judgment is given against me?

If you have a default judgment entered against you, you can ask the court to reconsider the matter. This is called applying to have the judgment set aside. The court will set aside the judgment in certain circumstances. You must apply within 21 days after the judgment was given.

It is important to seek legal advice about whether you will succeed before applying to have a default judgment set aside.

What if I think my case is not listed at the right Magistrates Court?

If you think the claim should have been started in another court you can apply for a change of venue.

Complete the 'Application for change of venue' section (found under 'Intention to Defend' on the response form.)

You must write on the form:

  • that you object to the venue, and
  • state which Magistrates Court you believe it should be held in.

The form includes an affidavit that tells the court why you think the venue should be changed.

An affidavit is a written statement of evidence. You must swear or affirm that the affidavit is true in front of a registrar, justice of the peace, or an authorised witness. It is a criminal offence to make false statements in your affidavit.

What does the court consider in working out what is the "right" court to list the case at?

The court has the power to change the venue if it would be more convenient or fair to the parties to do so.

Notice of the objection is then sent to the claimant who has a chance to argue why they believe the location to be correct.

If the claim has been started at the Magistrates Court:

  • nearest to your home or business address which existed not more than six months before the claim was issued, or
  • the place where the claim arose either wholly or in part the court will be unlikely to change the venue.

The registrar will notify you of the court's decision.

What happens after I lodge my response to the claim?

When you have lodged your response, a registrar must forward a copy of your response to the claimant along with a notice to both the claimant and you.

What happens next depends on what sort of case it is. For

  • minor case claims - the registrar must list your case for a pre-trial conference
  • minor case consumer/trader claims - the registrar must list your case for a listing conference
  • general procedure claims including consumer/trader claims - within 14 days of receiving a response indicating an intention to defend the claim, the claimant must request a registrar to list your case for a pre-trial conference.

The claimant may lodge a statement of claim which sets out their case against you.

You should lodge a statement of defence no later than 14 days after being served with a statement of claim, unless you have already lodged it with your response. This should set out why you are arguing against the claim.

If the case goes to a pre-trial conference and you have not already lodged a statement of defence, the registrar can order you to lodge one.

If you do not lodge a statement of defence within time, judgment can be given against you.

A judgment has been made against me. What does that mean?

If a judgment has been made against you the claimant will be called the judgment creditor and you are the judgment debtor.

The judgment creditor can ask the court to enforce the judgment against you.

Enforcement may include:

  • selling your personal property or real estate
  • you having to go to court to give details of your income and assets
  • your employer having to pay some of your wages towards the judgment debt
  • further costs for you to pay.

If a judgment has been made against you and you don't understand, or you don't have money to pay get legal advice.

Don't ignore the judgment.


Go to If a judgment is made against you - enforcement process for more information about what may happen if you don't pay.

Can I settle my case without a hearing?

Claims in the Magistrates Court can be settled at any stage until judgment is given.

The earlier settlement takes place, the less the costs will be.

If your defence has no legal merit you should settle the matter as soon as possible even if it means paying all or some of the other parties' costs to the date of settlement.

Get legal advice.

Where can I get more information?

  • Contact Legal Aid WA's InfoLine on 1300 650 579
  • Go to the Magistrates Court of WA website for more information and the forms you may need.

Last reviewed: 31/05/2013

Last Modified: 31/05/2013

Disclaimer

The material displayed on this page is intended for information only. If you have a legal problem, you should see a lawyer. Legal Aid Western Australia believes that the information provided is accurate, however does not accept responsibility for any errors or omissions.