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Possible responses from the respondent

Responses to Pre-action Steps

When the applicant issues a Final Notice (P1) or a Letter of Demand, the respondent has 21 days to respond before the applicant may proceed with lodging a formal claim in the court.

If the respondent receives a Letter of Demand giving notice of the applicant’s intention to commence legal action, the respondent must serve a written response on the applicant within 21 days [r 332.3 (1)]. This written response to the applicant should include:

  • the respondent’s full name and address for service;
  • as far as is practicable, a response to each of the applicant’s claims (including whether the respondent agrees or disagrees, and if so, the extent of the disagreement);
  • whether or not the respondent intends to bring a counter-claim or claim a set-off against the applicant’s claim;
  • a copy of any expert reports relevant to the proposed action
  • an offer to settle the action where practicable;
  • whether or not the respondent will agree to a meeting or mediation for negotiating a settlement of the dispute

However, if the respondent receives a Final Notice (Form P1) of an intended action from the applicant, then the respondent is not required to serve a response in writing on the applicant [r 332.3(3)]

Responses to Claim

When the respondent receives the claim they have 28 days to decide what to do. During that time the applicant cannot do anything to proceed with the claim. The three choices the respondent has are:

  • do nothing
  • pay the full amount of the claim or come to some arrangement with the applicant to resolve the claim - if the respondent admits the claim or that they owe some or all of the amount, they can fill in the front of the claim form and return it to the court
  • defend the claim, with or without a counterclaim.

No response

If the respondent does not respond within 28 days, the applicant can apply for default judgment to be signed in their favour without the need for a court hearing. To do this, the applicant must complete a Form 76B - Application to Registrar-Sign Judgment and file it with the court with proof that a Form 1 or 1S Claim has been served on the debtor, and that the applicant has waited at least 28 days for a response.

This judgment can be set aside if the respondent can show they did not receive the claim. This is why it is important to find out the respondent's correct address, and, if there is any doubt about the address, to have a Sheriff's Officer serve the claim or for the applicant to serve it personally on the respondent . For more information see Serving the claim on the respondent.

An applicant seeking default judgment should provide any relevant quotes or invoices as well as a written schedule of costs that the applicant will be seeking to recover at the time the request for default judgment is filed [r 142.3] If the applicant has not attached a relevant quote or invoices to prove the amount claimed or has made a claim for an unspecified amount, then the applicant should request default judgment for an amount to be assessed [r 142.5] A further hearing date will be set by the Court and the parties will receive a Notice of Directions Hearing – Assessment of Damages or Other Relief [r 142.9]. If the applicant is seeking default judgment for a non-monetary claim, the applicant can seek judgment with the relief to be assessed [r 142.6].

Admission of the claim

If the respondent admits the claim and agrees to pay or act, the parties should to negotiate a specific final date for payment or action. If the respondent does not pay or act by the agreed date, follow the process set out above for having judgement signed against the respondent, and then apply to enforce the judgment by issuing an investigation hearing using Form 141 – Application to Enforce Judgment.

The respondent can admit liability for all or part of a debt owed. If the respondent only admits part of the debt owed, and this is not satisfactory, the applicant can continue with the action. However, the applicant may have to pay the respondent's costs if the court awards no more than what the respondent paid into the Court.

A respondent can admit liability for a debt by filing an Enforceable Payment Agreement (Form P2) document with the Court.

Denial of liability - Defence

  • The respondent has 28 days to file a defence from the time a claim is served.
  • A respondent has to complete a Form 51 or 51S . If the Defence is filed in person at the Magistrates Court registry, the respondent should file a Form 51 with a Form 51S attached. If the respondent is filing the Defence online the respondent should use the Form 51S only [r 334.1]
  • A Defence must identify any part of the applicants claim that is agreed
  • A copy of the defence will need to be served (sent or given) to the applicant.

Counterclaim / Cross Claim

  • If the respondent thinks they have a claim against the applicant, they can complete and file a counterclaim. This is a Form 61 or 61S. The filing fee is $153 as at 1 July 2019.
  • The counterclaim needs to be filed with the defence, and, if for any reason the applicant’s claim does not proceed or is dismissed, the respondent’s counterclaim can still continue as a separate action.
  • If the applicant has a counterclaim filed against them, the court assumes the applicant is defending it, and does not require the applicant to file a defence to the cross claim unless the court orders it [r 334.2 (7).
Possible responses from the respondent  :  Last Revised: Wed May 13th 2020
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