Before you go to court
Going to court over money should be a last resort. It can be stressful, costly and time consuming and you may not get the outcome you want! Trying to resolve the case before court may be the best option. Can an outcome you are happy with be negotiated without going to court?
If you feel you need to go to court, be careful you have evidence or proof to back up your position. There are no guarantees that what you are owed will be recovered if you go to court. In some cases if you are unsuccessful you could be ordered to pay the costs of the other party.
- steps you can take to avoid court as someone owed money (creditor)
- steps you can take as someone owing money (debtor) to avoid court
- whether you need legal advice before starting or defending your case at court.
If I am owed money, what steps can I take to avoid having to start a court case?
If you are owed money, you may want to see if there are ways to get the money repaid without going to court. Be sure that you are actually owed the money and that you will be able to collect if an order for payment of the money owed is made in your favour.
You have several options including:
- Contacting the debtor and trying to reach an agreement through negotiation or inviting them to participate in mediation.
- Sending a letter demanding payment (a letter of demand).
Before starting a case in the Magistrates Court, you should write a letter of demand to the other party saying there is a debt and that you want them to pay it.
You must write a letter of demand if you want to recover the costs of lodging the claim from the defendant if you end up going to court.
The debtor is called the defendant if you start a court case.
If I owe money, what steps can I take to avoid having a court case against me?
If you have received a letter of demand, you need to work out if you owe the money demanded. To work this out in some cases you may need more information from the person or business (the creditor). In some cases you can ask for more information, for example, a detailed account of fees and charges, or a copy of the contract if there is one.
It is best to put requests in writing. Keep a copy.
Sometimes you may need legal advice about whether you owe the debt.
Check that the creditor has not run out of time to chase you for the debt.
If you are sure that:
- the amount is correct and
- the demand is within time,
you should work out how you can pay the debt. If you can't pay it in full you should work out how much you can afford to pay each week/fortnight/month.
To make a plan to repay debts see When you can't pay your bills. Contact the creditor, and make an offer to pay the debt, according to what you know you can afford and when you can start. Do this in writing even if you have discussed the offer first. You should date your letter and keep a copy. A financial counsellor may be able to help you respond.
If the creditor accepts your offer of repayment, you should again write to them confirming the arrangement. Keep a copy.
Start making the payments you have agreed on.
Do I need legal advice before starting my case?
You should always seek legal advice before going to court.
Some of the issues advice may be needed on include:
- Negotiating an agreement with the other person
- If an offer of settlement has been made, whether the creditor should accept it
- Whether there is a legal basis to your claim/defence
- Do you have the proof or evidence you need to support your case
- Whether the creditor is within the time limit to start a claim
- The chances of your claim/defence being successful
- Likely costs
- Which procedure in the Magistrates Court the creditor should follow to make their claim
- Where a creditor can lodge a claim.
Even if the creditor is successful, they may not be able to get the money from the debtor, for example, if their only income is from Centrelink.
Reviewed: 6 September 2022