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Once you have decided to dispute a matter claim in court, the next step is to serve your claim to your opponent. The purpose of ‘serving’ a claim is to notify your opponent of your intention to bring a matter to court. It also provides them with an opportunity to defend the claim. This article answers some Frequently Asked Questions about serving a statement of claim in New South Wales (NSW).

1. Who Do I Serve a Statement of Claim to?

You serve the person or company named as the defendant in the statement of claim. Remember that an unincorporated business is not a legal entity. If you have been dealing with an unincorporated business rather than a company, you will need to figure out who the person trading for that business is. 

2. What If They Have a Lawyer Acting For Them?

If you are already engaging in correspondence about your dispute, you may have been speaking with your opponent’s lawyer. You should check if they hold instructions to accept service on behalf of the defendant. If they do, you can serve the claim directly to the lawyer.

3. How Do I Serve a Statement of Claim?

You can serve a claim through:

  • personal service; or
  • postal service.

Personal Service

Here, you can personally serve a statement of claim to individuals and companies at their registered office. It isn’t sufficient to simply pop the statement of claim into their letterbox. You must adequately bring the claim to the defendant’s attention.

You can pay a process server to serve a statement of claim on a defendant personally. A process server is someone that you can hire to issue statement of claims to opponents. This option ensures that the process is correctly done. However, it is a little more expensive than service by post or serving it yourself.

Postal Service

You and the court can both serve company defendants via postal service. However, only a court can serve an individual through the post. It is important to serve the defendant at the correct address as the defendant needs to be aware that the claim exists.

Although postal service can be a cheaper option, there is a risk that the defendant may not receive the statement of claim. Consequently, if you receive a default judgment on the defendant, the judgment may be set aside if they weren’t validly served with a copy of the statement of claim. That is, they didn’t receive it and were not given an opportunity to defend the claim.

Generally, the completion of postal service happens four business days after you originally post the letter. You should keep a record of the date that you posted the claim and the post office that you dropped it in. This could come in handy later if you need evidence to support the validity of your service of the claim. 

4. What If Someone Avoids Being Served?

Sometimes defendants avoid service by avoiding to answering the door or refuse to let you onto their property. This is known as ‘keeping house’. If you can establish this behaviour with the court, then you can leave the statement of claim at the letterbox. Or, you could attach it to their property in a place where they will see it. You will need to show the court how they evaded service.

Additionally, the court can make orders for substituted service. This refers to orders for service that are not in person. Sometimes, service can even be issued via social media. Essentially, you need affidavit evidence that explains:

  • why you have been unable to serve the statement of claim;
  • the alternate ways that the claim could be brought to the attention of the defendant; and
  • how you know that serving the claim in that manner will result in it being effectively served.

Process servers have experience and know what to do if they come across an evasive defendant. 

5. How Do I Prove that the Defendant Has Been Served?

It may be necessary to show the court how and when a defendant has been served by way of an affidavit.

For example, if the defendant does not file a defence within 28 days (the time stipulated by the court) then you can apply for default judgment. However, you must be able to prove that the defendant saw the claim and had the opportunity to file a defence but did not take any action. 

Keeping records of the following is crucial to show:

  • when you served the claim (if you are successful);
  • when and where you sent the claim; and
  • any attempts you made to serve.

 The more information you can provide to a court, the better.  

6. What If The Defendant Is Located Outside NSW?

If you have a defendant outside NSW but within Australia, service is still possible in the ways set out above. 

If the defendant is located or resides overseas, service becomes a little more difficult, and you will need to take further steps. The process of service will depend on the country that you need to serve in.

Key Takeaways

Service is a key component in court proceedings. It is important to ensure legal proceedings are properly brought to the attention of the defendant. If not, any default judgements made against them will not be valid. If you need to discuss a court claim or a method of serving notice of a statement of claim, get in touch with LegalVision’s disputes lawyers on 1300 544 755 or fill out the form on this page. 

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