Responses to Pre-action Steps
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:
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:
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
Counterclaim / Cross Claim