In an earlier article, we explained how you can enforce a payment by issuing a Letter of Demand. Unfortunately, this is not always successful in recovering money owed and you may choose to pursue the matter in the Magistrates Court of Tasmania. We will look at the process involved in making a minor claim and how you can enforce a payment through litigation.
Minor Claim Form
You will first need to fill in a minor claim form that you can collect from the Magistrates Court or you can download from the website. You must lodge three copies of the claim:
- A copy for yourself,
- A copy to ‘serve’ the defendant with, and
- A copy to file and lodge. If you serve the Defendant personally, you will file and lodge an Affidavit of Service with a copy of the claim.
The Court will stamp all three copies and keep the original.
What is Service?
Service is where you provide the Defendant with a copy of the claim that is then taken as notice. You can serve the Defendant by:
- Delivering the claim personally to the Defendant,
- Arranging a process server to deliver the claim, or
- The Court can arrange for service on your behalf.
If you serve the Defendant personally, you will need to file an Affidavit of Service to provide evidence that the Defendant received the claim. You must also serve the Defendant as soon as practicable and within one year of lodging the minor claim form. A request can be made to the Court for an extension of time.
What can the Defendant do?
The Defendant has 21 days to respond to the claim from the date of service, during which time he or she can:
- Pay the amount demanded,
- Settle the matter by arranging a payment plan/alternative arrangement, or
- File a defence.
You will receive a copy of the defence if it is filed within 21 days of receiving notice of the claim. The Court will then set a date for a directions hearing. If the Defendant fails to respond to the claim, you may apply to the Court for a default judgment in your favour.
Settling the Matter Before the Hearing
Even after the hearing date is listed, you can still settle the matter directly with the Defendant. If you settle the matter, you need to write to the Registrar that you wish to withdraw your claim. You could also apply to the Court to make a Consent Order to enforce the terms of settlement.
Settling the Matter at the Hearing
At the directions hearing, the Magistrate will ask you both questions about the situation, and try to reach an agreement between the parties. The Magistrate will set a date for a hearing or mediation if parties cannot reach an agreement, and make orders following the presentation of each parties case.
Conclusion
It is important to work towards settling matters outside of Court and through comparatively informal channels, like issuing a Letter of Demand. If, however, these continue to prove unsuccessful in recovering money owed, you should take steps to familiarise yourself with the process to file a Minor Civil Claim. LegalVision’s experienced team of litigation and dispute resolution lawyers are delighted to answer any of your questions. If you require assistance to enforce a payment in Tasmania, please get in touch with us on 1300 544 755.