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Estimated Time to Build: 14 - 17 Minutes
Jurisdiction: Western Australia
Download the Demand and Summons for Debt - WA Checklist
Sample is not available for this document.
QUESTION: I have a debt I need to recover. The guy is in NSW. We live in WA and trade out of WA. Which document should I use?
ANSWER: There are 2 issues. You want to sue in your jurisdiction because it is easier. You live there and you can go to the court close to you. Less travelling is required. So it is generally best to sue someone in your home state where you live.
However, this may not always be fair to the debtor. If you signed the agreement in the other state and you said that you would sue in that other state if something went wrong then it would be unfair to sue in your home state. Apart from that issue you are welcome to sue in your home state.
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The Creditor is the person that lent the money. The Debtor is the person who borrowed the money and hasn't paid it back.
If John Smith and Jenny Smith lent the money then both these Creditors should be mentioned separately as Creditors.
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The Letter of Demand and Summons should be as correct as possible. If 4 people are the Creditors then all 4 people should be mentioned.
You will need to press "Add" and keep adding the Creditors until all of them are individually mentioned.
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A company can lend you money. A human being can lend you money.
COMPANY
Let's say the first person you insert as a Creditor is a company. You press the Company button on the top of the page. You then fill out the company details - "Company Name" and "ACN". The Company Name must look like one of these:
************ Pty Ltd (most common)
************* Ltd (this is a Public company)
****************NL (this type of company is only for Public mining companies)
If you don't have the company’s correct name or ACN then you should do a free search for their correct details at www.asic.gov.au. Remember you want to be as correct as possible. What does being correct show? It means that you are serious in recovering your money from the Debtor. Also, only the Creditor can recover the money. Therefore if Jenny and John sue for the money, but the money is really owed to their company then they won't win. In this scenario the wrong person is suing. They should have sued in the company’s name.
Look at your loan agreement, contract or the invoice that you gave the Debtor. Make sure the right person or persons are suing the Debtor.
HUMAN BEING
Each human being needs to be inserted separately. This time click on human. Use the Creditor's full legal name. Be as correct as possible.
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No you can't.
The Magistrates Court only allows you to recover up to $75,000 plus costs.
If your debt is for $80,000 and you sue in the Magistrates Court then you can only recover up to $75,000.
If you want to recover more than $75,000 then you need to sue in a higher court - such as the District Court or Supreme Court.
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It doesn't matter. For example, your mate borrowed a few hundred dollars from you. He signed an agreement to pay you back in two weeks. It is 6 months down the track and there is no sign that he will pay your money back.
You can use the Law Central debt recovery document to sue the person who owes you money.
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Yes, it does. If you are inserting a company as a Creditor then select 'Company' and only complete the 'Company Name' and 'ACN' (and of course the address).
The government introduced numbers for companies back in 1989. It helps identify the company.
Don't know your ACN? Then you can do a free search for your company at www.asic.gov.au.
When entering your ACN, make sure that you type the letters ACN before your Company number. E.g. ACN 44 1234 5678
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This letter of demand works Australia wide. However, the Claim is only for lodging at a Magistrates Court in Western Australia.
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You are not legally obliged to put in your telephone number. You can provide it so that the Court or the debtor can contact you if necessary.
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The Debtor is the person that won't pay the Creditor back their money. You the Creditor, lent money to the Debtor.
Each Debtor needs to be mentioned. If you lent money to both a Husband and Wife then you need to press "add" twice to individually enter both of them into Law Central.
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If John Smith only owes you the money, then John Smith is the only Debtor.
If John Smith and his company owe you the money for the goods you supplied, then you have 2 Debtors.
If however, John Smith and Mrs Smith guaranteed the debt for the company, then you have 3 Debtors. All 3 Debtors have to be included.
Just make sure you include all the Debtors.
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Make sure you know the exact full name of the person you are suing.
The more exact you are the better the documents look and the easier it is to get the documents served on the Debtor.
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Be careful. You may need 2 Letters of Demands & Claims.
Obviously if you went out and lent Frank and Fred some money, both would be liable. If this was the case then you can sue them together and do the letter of demand together.
But if they were just 2 trade creditors that didn't even know each other then prepare separate Letters of Demand and Claims.
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You sue the Trustee.
E.g. Smith Nominees Pty Ltd is the trustee of the Smith Family Trust - sue Smith Nominees Pty Ltd.
E.g. Mark Spencer as trustee of his wife - just sue Mark Spencer.
E.g. Colin Atkins as trustee of the Atkins Family Trust - just sue Colin Atkins.
You don't need to refer to the fact that you are suing the Debtor in their capacity as Trustee. It isn't generally relevant. The Trustee is liable for the Debt. They can seek to get the money out of trust funds or from the beneficiaries. That is not your business. You just want the money.
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Please only put in numbers e.g. 3456.34
Don't write in any words.
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The Magistrates Court's jurisdiction is $75,000. If the Debtor owes you $80,000 then you will need to sue in another Court or reduce your claim down $5,000 to $75,000.
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It doesn't matter. For example, your mate borrowed a few hundred dollars from you. He signed an agreement to pay you back in two weeks. It is 6 months down the track and there is no sign that he will pay your money back.
You can use the Law Central debt recovery document to sue the person who owes you money.
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That is OK. You can just liquidate your damages.
Let's say that you paid the plumber $8,000 to do the kitchen. He took $4,000 up front and never came back. You can sue him for the return of the $4,000.
What about the gardener? He put in $12,000 worth of plants and they all died a week later. You need to recover that $12,000 from the gardener. Send the Letter of Demand. Wait 2 weeks and hit him with the claim.
You need some work for a client. It was a $54,000 job. Half way through the client tells you he doesn’t want to proceed. You total up your costs to date. It is $22,000. Sue the client for that $22,000.
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What do I do if I am not happy with the goods or services supplied to me?
The Magistrates Court helps to resolve disputes between you (the consumer) and the trader/supplier about the sale, supply or hire of goods and services.
The amount in dispute must be $10,000 or less. Disputes are heard before a referee, who is a legal practitioner. You need to use another application form.
This Law Central document does not apply to you.
The Magistrates Court can be contacted for more information on Consumer/ Trader Claims. Magistrates Court of Western Australia, Perth Registry Central Law Courts 501 Hay street, Perth, WA 6000.
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These are the details of the claim that you are making against the Debtor.
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Claims can be served by:
1. a Bailiff of the Court - this is the most common way as the bailiff knows how to get the job done; or
2. yourself - if you have the time and energy to do it.
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The 'Letter of Demand' can be posted or hand delivered. That is your decision. This question is not about how you get the Letter of Demand into the Debtor's hands. This question is only about how the Claim is to be served once you lodge it with the Magistrates' Court.
You send out the Letter of Demand with the draft Claim.
However, if you don't get paid then you lodge the 'Claim' at the Magistrates Court. At the Magistrates Court they ask you how you would like the Claim served on the Debtor. Most people opt to let the Court's Bailiff serve the Claim.
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If you are sending or posting the letter today then put in today's date.
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Law Central wants your document to be as correct and professional as possible. That way you are more likely to get back your money.
The Letter of Demand needs a date. You will need to insert the date that you are going to send the letter. That date appears in the Letter of Demand.
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This document has been prepared by Law Central Legal
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