Demand and Summons for Debt - VIC

Does someone owe you money or something else and won't pay up?

It took you a long time to earn that money or provide that service. Now is the time to prepare yourself to recover your money.

Does the Debtor think that the debt is too small for you to see a lawyer? Well now there is no need.

You are now on the way to drafting both a:

1. Letter of Demand; and
2. Complaint.

Picture this: You send the Letter of Demand to the Debtor. The letter is unpleasant and makes most Debtors stand up and take notice of your demand for payment. The Letter of Demand also complies with the legal requirement to ask the Debtor for the money before you can sue.

What makes it better is that enclosed with the Letter of Demand is the draft Complaint. Some people view Letters of Demand as idle threats. But you have gone to the trouble of preparing up the Complaint which is used to commence legal proceedings. You are already in action. The Debtor looks at the Complaint and says, "This person is going to sue me. They are serious. If I don’t pay up all they have to do is lodge the Complaint at the Magistrates Court."

Note: You can’t use the draft Complaint as a debt collecting threat. If you do serve the draft Complaint with the Letter of Demand, then you need to have the intention to later lodge and serve the Complaint. You can change your mind after you send the Letter of Demand. But at the time of sending the Letter of Demand and draft Complaint you must have had the intention to lodge and serve the draft Complaint at the Court if the debt was not met to your satisfaction.

The combination of the well-drafted Letter of Demand with the draft Complaint is powerful.

What if the Debtor decides to tough it out and not pay you? Then the Complaint that you have already prepared just needs to be lodged at the Magistrates Court and served on the Debtor.

After you send your Letter of Demand and Complaint, the Debtor will hopefully pay what is owed and it will not be necessary to go the next step and issue and serve the Complaint.

This is what you get from Law Central:

1. A Debt Collection Manual;

2. A Letter of Demand;

3. Overarching Obligations Certification (Form 4A);

4. Proper Basis Certification (Form 4B);

5. Complaint (Form 5A);

6. Affidavit/Declaration of Service (Form 6A); and

7. Notice of Defence (Form 8A).

Let’s get into it. Press “next” to build both your Letter of Demand and Complaint.

Note: This document only applies to claims for debts up to $100,000.

Checklist is not available for this document.

Sample is not available for this document.

Debt Owed To
• Want to sue someone in another state?
• Is your claim over 6 years old?
• Who is the Lender? Who is the Debtor?
• There are Three Lenders, do I have to put them all in?
• Is the Lender a Company or a Human?
• Can you sue for sums greater than $100,000?
• Does 'ACN' stand for 'Australian Company Number'?
• Am I commencing legal proceedings?
• What am I buying?
• What if the Lender is a trustee?
• Lender address must be in Victoria
• What is a Representative Capacity?
Who Owes Debt
• Who is the Debtor and who is the Lender?
• How many Debtors do I put in?
• Ensure you sue the correct person
• Frank owes me $200 and Fred owes me $750. Do I sue both?
• Debtor has many addresses?
• What if the Debtor is a trustee?
• What is a Representative Capacity?
Claim Amount
• Is your claim over 6 years old?
• Why do you leave out the dollar sign?
• Why only put in numbers (not words)?
• Can I sue for more than $100,000?
• What if the Debtor owes you a service or goods - not money?
• Can I claim other relief or remedy (if any)?
• Filing Fees
Date of Letter
• Is your claim over 6 years old?
• What date should I put in the letter of demand?
• What if I don't know when I am sending the letter?
Statement of Claim
• Example Statement of Claim
Court Location
• Which court location do I choose?

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Debt Owed To

• Want to sue someone in another state?

  QUESTION: I have a debt I need to recover. The debtor is in NSW. We live in Vic and trade out of Vic. 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 an agreement in the other state saying that you would sue in that other state, it would be unfair to sue in your home state. Apart from that you are welcome to sue in your home state.

  This hint is provided by Law Central Legal.

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• Is your claim over 6 years old?

  A Complaint must be brought within 6 years from the date the cause of action arose. Generally, you can't put in a Complaint after 6 years. If your cause of action is more than 6 years old, you may wish to seek legal advice.

  This hint is provided by Law Central Legal.

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• Who is the Lender? Who is the Debtor?

  The Lender is the person that lent the money or provided the goods or services.
  
  The Debtor is the person who has not paid for the goods or services supplied.

  This hint is provided by Law Central Legal.

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• There are Three Lenders, do I have to put them all in?

  Add all persons who are owed money. The Letter of Demand and Complaint should be as correct as possible. If three people are the Lenders or Debtors then all three people should be mentioned.
  
  You will need to press "Add" and keep adding the Lenders until all of them are individually mentioned.

  This hint is provided by Law Central Legal.

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• Is the Lender a Company or a Human?

  COMPANY
  Let's say the first person you insert as a Lender 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.
  
  Also, only the Lender 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
  Each human needs to be inserted separately. This time click on human. Use the Lender's full legal name. Be as correct as possible.

  This hint is provided by Law Central Legal.

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• Can you sue for sums greater than $100,000?

  No, you can't.
  
  The Victorian Magistrates Court only allows you to recover up to $100,000 plus allowable costs.
  
  If your debt is for $200,000 and you choose to sue in the Magistrates Court then you can only recover up to $100,000.
  

  This hint is provided by Law Central Legal.

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• Does 'ACN' stand for 'Australian Company Number'?

  Yes, it does. If you are inserting a company as a Lender 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 you enter your company number into this field, write ACN before your company number. E.g. "ACN 123 456 789"

  This hint is provided by Law Central Legal.

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• Am I commencing legal proceedings?

  No. You are sending a Letter of Demand. Included with the Letter of Demand is the Complaint that you propose to issue. The Complaint is used to commence legal proceedings if the debt is not paid.
  
  To commence legal proceedings, you will need to lodge the Complaint at the Court and pay the Court's fee. Hopefully you will not have to go this far and the Debtor will pay the debt to you before it gets to this stage.

  This hint is provided by Law Central Legal.

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• What am I buying?

  Your Debt Kit includes:
  
  1. Debt Collection Manual;
  
  2. Letter of Demand;
  
  3. Overarching Obligations Certification (Form 4A);
  
  4. Proper Basis Certification (Form 4B);
  
  5. Complaint (Form 5A);
  
  6. Affidavit/Declaration of Service (Form 6A); and
  
  7. Notice of Defence (Form 8A).

  This hint is provided by Law Central Legal.

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• What if the Lender is a trustee?

  If the Lender is a trustee, then you enter the name of the trustee as the Lender and refer to the fact they are a trustee when you enter their Representative Capacity.
  
  I.e. Smith Nominees Pty Ltd ACN 123 456 789 is the trustee of the Smith Superannuation Fund. When you are entering the Lender's name, enter "Smith Nominees Pty Ltd ACN 123 456 789". In the Representative Capacity field, enter "as trustee for the Smith Superannuation Fund".
  
  I.e. Colin Atkins is the trustee of the Atkins Family Trust. When you are entering the Lender's name, enter "Colin Atkins". In the Representative Capacity field, enter "as trustee for the Atkins Family Trust".

  This hint is provided by Law Central Legal.

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• Lender address must be in Victoria

  As the Lender is a self represented litigant (i.e. they are not instructing a lawyer), the Court requires that the Lender's address is in Victoria.

  This hint is provided by Law Central Legal.

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• What is a Representative Capacity?

  A Representative Capacity refers to whether the Lender is suing in another capacity, for example as a trustee. Leave the Representative Capacity blank if the Lender is suing in their personal capacity.
  
  I.e. Oscar Reynolds is owed money in his personal capacity. When you are entering the Lender's name, enter "Oscar Reynolds". Leave the Representative Capacity field blank.
  
  I.e. Widgets Pty Ltd ACN 123 456 789 (trading as Widgets R Us) is owed money for goods it supplied. When you are entering the Lender's name, enter "Widgets Pty Ltd ACN 123 456 789". Leave the Representative Capacity field blank.
  
  I.e. Colin Atkins is the trustee of the Atkins Family Trust. When you are entering the Lender's name, enter "Colin Atkins". In the Representative Capacity field, enter "as trustee for the Atkins Family Trust".
  
  I.e. Smith Nominees Pty Ltd ACN 123 456 789 is the trustee of the Smith Superannuation Fund. When you are entering the Lender's name, enter "Smith Nominees Pty Ltd ACN 123 456 789". In the Representative Capacity field, enter "as trustee for the Smith Superannuation Fund".

  This hint is provided by Law Central Legal.

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Who Owes Debt

• Who is the Debtor and who is the Lender?

  The Debtor is the person who has not paid for the goods or services supplied by the Lender. The Lender is the person that lent the money or provided the goods or services 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.

  This hint is provided by Law Central Legal.

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• How many Debtors do I put in?

  If John Smith only owes you the money, then John Smith is the only Debtor.
  
  If John Smith and his business partner Bob Brown owe you money for goods you supplied then you have 2 Debtors.
  
  If however, John Smith and Jan Smith guaranteed the debt for their company then you have 3 Debtors. All 3 Debtors have to be included.
  
  Just make sure you include all the Debtors.

  This hint is provided by Law Central Legal.

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• Ensure you sue the correct person

  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 easier it is to get the documents served on the Debtor.

  This hint is provided by Law Central Legal.

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• Frank owes me $200 and Fred owes me $750. Do I sue both?

  Be careful. You may need two separate Letters of Demand & draft Complaints.
  
  Obviously, if you went out and lent Frank and Fred some money then 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 two trade creditors that didn't even know each other, then prepare separate Letters of Demand and Complaints.

  This hint is provided by Law Central Legal.

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• Debtor has many addresses?

  QUESTION: The Debtor has a home address, postal address and a business address. Which address do I use?
  
  ANSWER: It is best to use a physical address, so if the Debtor is an individual, either their home or business address is best. If the Debtor is a company, you should use the company's registered office address.

  This hint is provided by Law Central Legal.

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• What if the Debtor is a trustee?

  If the Debtor is a trustee, then you enter the name of the trustee as the Debtor and refer to the fact they are a trustee when you enter their Representative Capacity.
  
  I.e. Smith Nominees Pty Ltd ACN 123 456 789 is the trustee of the Smith Superannuation Fund. When you are entering the Debtor's name, enter "Smith Nominees Pty Ltd ACN 123 456 789". In the Representative Capacity field, enter "as trustee for the Smith Superannuation Fund".
  
  I.e. Colin Atkins is the trustee of the Atkins Family Trust. When you are entering the Debtor's name, enter "Colin Atkins". In the Representative Capacity field, enter "as trustee for the Atkins Family Trust".

  This hint is provided by Law Central Legal.

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• What is a Representative Capacity?

  A Representative Capacity refers to whether the Debtor is being sued in another capacity, for example as a trustee. Leave the Representative Capacity blank if the Debtor is being sued in their personal capacity.
  
  I.e. Oscar Reynolds owes you money in his personal capacity. When you are entering the Debtor's name, enter "Oscar Reynolds". Leave the Representative Capacity field blank.
  
  I.e. Widgets Pty Ltd ACN 123 456 789 (trading as Widgets R Us) owes you money for goods you supplied to them. When you are entering the Debtor's name, enter "Widgets Pty Ltd ACN 123 456 789". Leave the Representative Capacity field blank.
  
  I.e. Colin Atkins is the trustee of the Atkins Family Trust. When you are entering the Debtor's name, enter "Colin Atkins". In the Representative Capacity field, enter "as trustee for the Atkins Family Trust".
  
  I.e. Smith Nominees Pty Ltd ACN 123 456 789 is the trustee of the Smith Superannuation Fund. When you are entering the Debtor's name, enter "Smith Nominees Pty Ltd ACN 123 456 789". In the Representative Capacity field, enter "as trustee for the Smith Superannuation Fund".

  This hint is provided by Law Central Legal.

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Claim Amount

• Is your claim over 6 years old?

  A Complaint must be brought within 6 years from the date the cause of action arose. Generally, you can't put in a Complaint after 6 years. If your cause of action is more than 6 years old, you may wish to seek legal advice.

  This hint is provided by Law Central Legal.

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• Why do you leave out the dollar sign?

  Put in the figure like this:
  
  5,700.00
  
  The $ sign is already in the document

  This hint is provided by Law Central Legal.

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• Why only put in numbers (not words)?

  Please only put in numbers e.g. 3,456.34
  
  Don't write in any words.
  
  Leave out the dollar sign.

  This hint is provided by Law Central Legal.

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• Can I sue for more than $100,000?

  No. The Magistrates Court of Victoria can only deal with amounts up to $100,000.
  
  If the Debtor owes you more than $100,000, then you need to sue in another Court or reduce your claim down to under $100,000.
  

  This hint is provided by Law Central Legal.

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• What if the Debtor owes you a service or goods - not money?

  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 and the Complaint that you propose to issue.
  
  You did 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. You can sue the client for that $22,000 by issuing the legal proceedings. The letter demanding payment indicates that you are serious in recovering the debt through legal proceedings.

  This hint is provided by Law Central Legal.

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• Can I claim other relief or remedy (if any)?

  You can claim the costs associated with the lodging and serving of this document. Fees such as Court fees, service fees, legal fees (if applicable), interest and other kinds of relief may be available to you to claim under the relevant laws.

  This hint is provided by Law Central Legal.

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• Filing Fees

  When you lodge a Complaint, the Magistrates Court asks you to pay a "filing fee". The filing fee can change from time to time, so it is best to double check with the Court Registry or online.
  
  There are also fees to lodge the necessary certifications. These fees depend on the amount of the claim.
  
  Please note that there is a blank space for you to fill in the total amount of costs involved in filing this document.

  This hint is provided by Law Central Legal.

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Date of Letter

• Is your claim over 6 years old?

  A Complaint must be brought within 6 years from the date the cause of action arose. Generally, you can't put in a Complaint after 6 years. If your cause of action is more than 6 years old, you may wish to seek legal advice.

  This hint is provided by Law Central Legal.

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• What date should I put in the letter of demand?

  If you are sending or posting the letter today then put in today's date.

  This hint is provided by Law Central Legal.

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• What if I don't know when I am sending the letter?

  Law Central wants your document to be as correct and as professional as possible. That way you are more likely to get your money back.
  
  Law Central is creating a Letter of Demand and a Complaint. 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.

  This hint is provided by Law Central Legal.

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Statement of Claim

• Example Statement of Claim
  Below are examples of a Statement of Claim.
  
  You may find it easier to draft your statement in another program (like Microsoft Word). You can then copy (Ctrl+C) and paste (Ctrl+V) into the box.
  
  Example Statement of Claim
  
  1. At all material times:

  1.1 the plaintiff was the owner of a Holden Commodore registered number XYZ 121;
  1.2 the defendant was the owner of a Toyota Camry registered number BSW 087.

  
  2. On or about the 1st day of March, 2015, at about 12.45am on Arthur Street, Melbourne, in the State of Victoria, the vehicle registered number BSW 087 owned and driven by the defendant collided into the rear of the plaintiff's vehicle registered number XYZ 121.
  
  3. The collision referred to in the preceding paragraph was caused by the negligence of the defendant, particulars of which are as follows:

  3.1 driving at a speed excessive in the circumstances;
  3.2 following the plaintiff's vehicle too closely;
  3.3 failing to take any evasive action in the circumstances;
  3.4 failing to steer or control their said motor vehicle so as to avoid the said collision or at all;
  3.5 failing to keep any proper lookout;
  3.5 failing to keep their motor vehicle under any proper lookout;
  3.6 failing to sound any warning of the approach of their motor vehicle;
  3.7 failing to apply the brakes on the said motor vehicle so as to avoid the said collision.

  
  4. As a result of the negligence of the defendant, the plaintiff has suffered loss and damage
  
  The plaintiff claims the following relief:
  
  PARTICULARS OF LOSS AND DAMAGE
  Repair to motor vehicle - $8,000.00
  AND the plaintiff claims as against the defendant the sum of $8,000.00 together with interest.
  
  Example Statement of Claim
  
  1. At all material times the Plaintiff was the owner of a Holden Commodore registered number XYZ 121.
  2. The Plaintiff sold and delivered the Holden Commodore registered number XYZ 121 to the Defendant for the sum of $1000AUD on or about the 20th day of January 2014 pursuant to a written contract.
  3. The Defendant was to pay the balance $800 of the purchase price on the 10th day of February 2014.
  4. Despite several requests and demands respectively made on the 10th day of February 2014, the 14th day of February 2014, the 20th day of February 2014 and the 25th day of February 2014, the Defendant has failed to pay the Plaintiff the balance $800 of the purchase price.
  5. The Plaintiff claims against the Defendant the sum of $800 being the balance owing on the purchase price of $1000.
  
  PARTICULARS OF LOSS AND DAMAGE
  Invoice Date     Invoice No.     Date Payable     Amount (AUD$)
  
  Minus Amount Paid on Date:
  
  Balance Payable:
  
  And the plaintiff claims the sum of $800.00 together with interest at ___ % pursuant to clause 8 of the written contract between the dates _______ and ______.

  This hint is provided by Law Central Legal.

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Court Location

• Which court location do I choose?

  You must choose a Magistrates Court location that is either:

  • closest to where you live (or where your company trades from / registered office); or
  • closest to where the cause of action occurred.
  For example, if your company's registered office is in Heidelberg, however the cause of action occurred in Sunshine then you can choose either the Magistrates Court in Heidelberg or the Magistrates Court in Sunshine. Ensure that when you enter the Court Location into Law Central, use all capital letters e.g. HEIDELBERG.

  If you are unsure, enter your location into the following link and it will provide you with details of your closest Magistrates Court. https://www.magistratescourt.vic.gov.au/jurisdictions/practice-and-procedure/proper-venue

  This hint is provided by Law Central Legal.

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This document has been prepared by Law Central Legal

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