In Australia, each state has its own debt recovery legislation. If the debtor does not give back the owed amount, then you have a right to issue a letter of demand for demanding the money. Creditor has multiple options to recover the money. Such as:
• Contacting the debtor and trying to reach an agreement through negotiation.
• Sending a letter demanding payment (called a letter of demand).
• Going to court – which one depends on how much you are owed.
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.
Contents of letter of demand
The letter of demand should:
• prove the person owing the money (the defendant) knew the debt had to be paid, or
• provide details of how the debt arose
• clearly set out the relevant dates, agreements and amounts
• include copies of quotes or invoices when applicable
• set a timetable for legal action unless a settlement proposal is received
• be sent by registered mail and the signed postal receipt kept
This gives the other party a chance to pay the debt without going to court. You should keep copies of all the letters you send to the other party. You need to decide if you want your letter to be ‘without prejudice’.
If your dispute is with another person, a business or a company and is for a fixed sum of money less than $25,000, you may be able to apply to QCAT to have the matter resolved.
If the amount owed to you is more than $25,000 you can start court proceedings.
The Magistrates Court can issue a claim against a defendant for any amount up to $150,000
If you are owed less than $75,000 you can go to the Magistrates Court of WA. There are two ways a claim can be made in the Magistrates Court. You may choose to have your claim heard as a minor case claim or as a general procedure claim.
Minor civil claims are matters heard in a Magistrates Court. They are matters where one party sues another for debts of $6 000 or less. It is an informal process and you do not need to be represented by a lawyer.
To decide where to start your case, you need to know that claims of:
• up to $10 000 are heard in the Small Claims Division of the Local Court
• more than $10 000 and up to $100 000 (or $120 000 in some limited circumstances), are heard in the General Division of the Local Court
• Above $100 000 (or $120 000 in some limited circumstances) are heard in the District Court or the Supreme Court.
The Civil Division deals with disputes involving amounts up to $50,000 in value; and amounts in excess of $50,000 if all parties agree.
The Magistrates’ Court of Victoria has jurisdiction to deal with debt recovery claims and damages claims up to the value of $100,000. The Court also has jurisdiction to provide equitable relief where the value of the relief sought is up to $100,000.
Net Lawman provides the following statutory demand forms. Such as:
Statement of Claim and Letter of Demand for use in WA
Each document includes example text for particulars and example letter to a debtor. The contents of the forms are as laid down in relevant State legislation, so the text of the document should not be changed.
Statement of Claim and Letter of Demand for use in QLD
Official Statutory declaration form, provided for by Queensland legislation including full explanatory guidance notes, exemplary text and a letter to be sent with the form.
Statement of Claim and Letter of Demand for use in NSW
Official Statutory declaration form, provided for by New South Wales legislation and Suitable for any person or company for use in the case of recovery of money.
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