As of 1 August 2016 the monetary limit for new minor civil claims reduced from $25 000 to $12 000.
Proceedings commenced before 1 August 2016 (even if they are over $12 000) will continue as they are.
A Minor Civil Action is an application about:
- a small claim, that is, a dispute involving up to $12 000
- a neighbourhood dispute matter based on trespass or nuisance
- a minor statutory proceeding, which includes applications under the following legislation:
- Fences Act 1975 (SA)
- an application under the Second-hand Vehicle Dealers Act 1995 (SA) pt 4 or s 33
- Second-hand Dealers and Pawnbrokers Act 1996 (SA) s 11(8)
- Building Work Contractors Act 1995 (SA) pt 5
- Retail and Commercial Leases Act 1995 (SA) (applications for $25 000 or less) and
- any other proceeding declared by a particular statute to be a minor statutory proceeding.
See Magistrates Court Act 1991 (SA) s 3(1) and (2).
Note that neighbourhood disputes and minor statutory proceedings may involve amounts over $12 000 and still be heard as minor civil actions. If a neighbourhood dispute or a minor statutory proceeding involves a monetary claim for more than $12 000, or a claim for relief in the nature of an order to carry out work where the value of the work is more than $12 000, a party may choose to exclude the case from the rules governing minor civil actions and have it treated as a case in the general division [Magistrates Court Act 1991 (SA) s 3(4)].
In a minor civil action, a lawyer normally cannot represent a party at the trial (although they can be involved in all of the preliminary steps leading up to the trial) and the procedures at trial are not as formal as claims in the General Division. If you want a lawyer to represent you, the other party must agree, or the Court may allow you to have a lawyer if it thinks that you will be disadvantaged without representation. See Magistrates Court Act 1991 (SA) s 38.
Some examples of minor civil actions include:
- motor vehicle property damage claims (see ACCIDENTS AND INJURIES, Motor vehicle accidents, Property damage and the Motor Vehicle Accident Kit)
- claims for money owed (see DEBT)
- neighbour disputes (see NEIGHBOURS)
- Fences Act 1975 (SA) applications (see NEIGHBOURS, Fences and the Fences and the Law booklet)
- strata and community title matters (see HOUSING, Strata titles and the Strata and Community Titles booklet)
- an application under section 61 of the Associations Incorporation Act 1985 (SA) on the basis that an association has engaged, or proposes to engage, in conduct that is oppressive or unreasonable (see COMMUNITY ORGANISATIONS, Disputes)
Before deciding to take legal action, consider whether mediation may be appropriate. Mediation is a process where both parties agree to sit down in the same room with a mediator to resolve their dispute. The mediator is a neutral third party who helps the parties discuss the problem. However, it is up to the parties themselves to arrive at a solution. Mediation can be seen as advantageous compared to going to trial because:
- mediation is an informal process in comparison to the court process, with less stress upon the parties
- the mediator will not decide on how to settle the matter - this is for the parties to decide
- the parties have more control over the process and outcome
- free mediation services are available, whereas legal action involves court fees
- mediation generally gives a quicker resolution than the court process
- the privacy and confidentiality of the mediation process is assured (parties sign a confidentiality agreement prior to the first mediation session and, if you both agree, the outcome can remain confidential).
Mediation is not always advisable, for example if you feel the other party has much more power than you in the situation, or if you feel threatened by the other party.
There are a number of private mediators who specialise in resolving civil disputes. If you wish to engage your own mediator (with the agreement of the other party), you will need to meet the cost of the services, as well as arrange a suitable venue.
However there are also free services available. Uniting Communities Mediation Services provides free mediation to eligible people, to attempt to resolve disputes.
In addition, the Magistrates Court offers a mediation service if you have sent the defendant a Final Notice of Claim using the Court's Form 1A (see 'Giving notice of intention to sue' below) or if you have already commenced legal action in the Court. If the court orders you to participate in mediation as part of the proceedings, there may be a cost of $500 unless the court agrees to waive the amount if you do not have the means to pay [see Third Schedule: Cost Scales, Cost Scale 2: Minor Civil Actions, item 5 contained in the Magistrates Court (Civil) Rules 2013, available here. See also Magistrates Court Civil Practice Directions 2015, Practice Direction 11(6) available here]. Where a fee for mediation is ordered, it will usually be born equally by the parties, and may be recoverable by the successful party to the dispute when the matter is finalised [see Magistrates Court (Civil) Rules 2013 Rule 72(2), available here].
Participating in mediation may also mean that if the matter proceeds to court, then certain court costs, such as the setting down for trial fee, can be reduced [Magistrates Court (Fees) Regulations 2004, reg 4(1a)].
If you come to an agreement, ensure you put it in writing. For debts, an Enforceable Payment Agreement (Form 1B) can be used (see 'Enforceable Payment Agreements').
If you decide to take legal action there are several decisions you will need to make before you can proceed. Depending on your situation it may be that legal action is not necessarily an option. You need to make an assessment of the pros and cons of pursuing the claim in the courts before you proceed.
There are several factors to consider before taking legal action:
Can you prove your claim? Do you have relevant documentation such as an invoice, text message, letter or email, or witnesses who will back up your version of events?
If there are issues of law involved, or if there is some doubt about how a court may view your claim, it may be advisable to obtain legal advice before proceeding.
A matter in the Minor Civil Claims Court can be settled at any time. However, it will be some months before a trial occurs if the other party does not agree to your claim. Enforcing the judgment will take some time after this and, if the other party has been ordered to pay you money, the debt may not be paid in full straight away but in instalments.
You would need to be available in court at the time set for your directions hearing and trial.
Fees in relation to a minor civil action need to be paid when:
- you give notice of intention to sue ($21.10 * if you use the court's online portal; $51 * if filed through the Court Registry; no fee if you send a letter of demand);
- you file the claim ($143 *); and
- your matter is set down for trial ($200 * for claims $4000 and less; $600 * for claims $4001 - $12000); and
- you file a counterclaim (where appropriate) ($143 *); and
- if you need to enforce the judgment (the amount varies according to the method of enforcement used – ring the Courts call centre on 8204 2444) .
*Fees are as of 1 July 2017.
In addition to the above, if the court orders mediation as part of the proceedings, a cost of $500 may be incurred unless the court agrees for the cost to be waived. This cost will usually be borne equally between the parties, and may be recoverable by the successful party at the conclusion of the matter. See Third Schedule: Cost Scales, Cost Scale 2: Minor Civil Actions, item 5 contained in the Magistrates Court (Civil) Rules 2013, available here. See also Magistrates Court Civil Practice Directions 2015, Practice Direction 11(6) available here.
All these costs are usually recoverable from the opposing party if you win.
The fee for setting a matter down for trial made be reduced by 50% if the parties have attempted mediation, and the mediator certifies the reduction [Magistrates Court (Fees) Regulations 2004 (SA) reg 4(1a)].
To view current fees that may apply, visit: The Courts Website .
- Do you wish to preserve the relationship with the opposing party(s) or others?
- Will mediation or further negotiation be more likely to produce a desirable result? (see below)
Writing the matter off
If negotiation and mediation are not successful or possible, and if any of the above factors mean that you do not wish to take legal action, then you can choose not to take action. That is, you can 'write the claim off'. In some cases, a business debt that is written off may be tax deductible.
The first step in making a claim is to find out exactly who you should sue. If you do not put the correct person’s name or business name on the forms, you may have difficulty obtaining judgment or a judgment made in your favour may be set aside. If you do not find out the correct and current address, the other party may not receive your forms and you may have to start the whole process again.
Similarly, you need to identify yourself correctly on the claim form. If the claim is on behalf of your business or partnership, use this name on the claim form.
An action can be brought against a person, a business (sole trader or partnership) or a company.
To find the address of a private person:
- see if any documents contain the person's address
- ring the person and ask them for their address
- check the White Pages
- check the electoral roll.
For a business (sole trader or partnership), to find the business owner's name and the correct business name and address, you can search the Business Name Register on the ASIC Connect website .
For a company, you must use the company's name and registered address on any documentation, not the name and address of individuals running the company. To find the correct company name, you can search for it using the company ABN or ACN (these numbers should be on any documentation you have from the company) on the ASIC Connect website .
To get the registered address of a company, you can:
- download and complete Form 964 (a fee is payable - for details on search fees see http://www.asic.gov.au/searchfees), OR
- purchase the registered address from the ASIC Service Centre at Level 8, 100 Pirie Street Adelaide SA 5000, OR
- purchase the registered address online at www.asic.gov.au/informationbrokers (there will be a broker’s fee in addition to the ASIC fee)
Further information can be obtained from ASIC on 1300 300 630.
Before commencing proceedings in court, notice of intention to sue should be given to the other party (this does not apply in relation to a counterclaim, a third party claim, a claim for non compliance with an EPA, or a claim under the Worker's Liens Act 1893 (SA)). This notice gives the other party 21 days in which to try and resolve the matter or seek mediation.
If no notice of intention to sue is given, the filing fee (the amount you pay the Court to lodge the claim) will not be recoverable, even if the action is eventually successful.
Notice of intention to sue can be given by EITHER filling out and serving a Final Notice of Claim (Form 1A) OR sending a Letter of Demand.
Final Notice of Claim
A Final Notice of Claim gives notice to the defendant of the nature of your claim and that you intend to start an action against them (see below for information specific to personal injury claims). This form can be obtained from the Magistrates Court Registry or over the Internet. There is a cost for the form ($21.10 if filed using the online portal; $51.00 if filed through the Court Registry). You can also use the online pre-lodgement system.
After serving the form on the defendant, you must wait a minimum 21 days for a response before taking any further action.
If you use Form 1A to give notice of your claim, the free mediation service provided by the Magistrates Court may be used to resolve the matter, if both parties agree to attend. Information about the option to use mediation is given to the defendant on the Form 1A. You can also get more information about the Mediation Service from the Court on 8204 2444.
If you want to try to resolve the claim informally, ask the Mediation Unit to approach the other side for you to see if they are willing to participate. Remember that mediation is not compulsory and there is no way to force someone to participate if they do not want to.
Service of the Final Notice of Claim
You must post the form yourself - the court will not do it for you. There are two ways you can serve a Final Notice of Claim or letter of demand:
- Regular post
Keep a copy of the document and make a record of the date it was sent. A posted document is assumed to have been received by the person it is addressed to.
- Registered post
Registered Post is where the addressee must sign for receipt of the document. You can organise and pay for your document to be sent by Registered Post at any post office. While using Registered Post shows that the letter was sent, it is not strictly necessary.
Letter of Demand
A letter of demand is a formal request that the defendant accept your claim. A letter of demand can be used instead of a Final Notice of Claim and must include:
- the date the letter was written
- the amount owed, or action required
- why the debt is owed (for example, there was a contract, or services were provided) or why the action is required
- a demand for payment or action within 21 days from the date of the letter
- a statement that you intend to take legal action if the money is not paid or there is no action within 21 days
- copies of agreements or invoices when applicable
- a warning that the Court can order the defendant to pay the costs of any legal proceedings.
You may wish to include information about the defendant's options, for example going to mediation. Note that the Magistrates Court's free mediation service is not available unless you use Form 1A to give notice of your intention to sue. However, you may use free community mediation services to resolve the matter.
Below is a sample letter of demand for a debt (for other types of disputes, please seek legal advice):
Dear [put the name of the other person here],
I enclose a copy of my invoice [provide details of invoice number, date, amount and what it is for]; which remains unpaid.
Please arrange payment of the above amount within 21 days of the date of this letter. If I do not receive payment I intend to commence legal proceedings to recover the debt and my legal costs.
Service of Letter of Demand
This letter does not have to be filed in the court, and can be sent directly to the defendant by regular post or it can be given personally to the defendant. The plaintiff should keep a copy of the letter.
Personal Injury Matters
Note that in an action for damages for personal injuries notice of the claim must be given at least 90 days before the filing of the claim and must be given to the defendant’s insurer if the identity of the insurer is known to the intended plaintiff. This notice must include notice of any intended claim for past and future economic loss and be supported by documents including medical reports setting out the nature and extent of the plaintiff’s injuries and residual disabilities as known to the plaintiff at the time of the giving of the notice.
If after the 21 day period following giving notice of the intended claim there has been either no response or an unsatisfactory response the claim itself can be started.
If the other party does not accept the claim, or try to negotiate after 21 days of serving the Form 1A or letter of demand, then the next step is to begin formal legal action. If negotiations are commenced and are unsuccessful, then legal action can be started without any further waiting period.
Information required on claim form
The person who is making the claim is called the plaintiff. The person against whom the claim is being made is called the defendant. The names and addresses of both of the parties must be filled in and at the bottom of the form under the heading 'particulars of claim' details of what the claim is about must be included. These particulars should include the date on which the matter took place and the basis on which the claim is made (this is called the 'cause of action'). If there is insufficient room at the bottom of the form separate pages can be attached to the form setting out the particulars of claim.
Where the defendant is a company
If the defendant is a company the address which should be put on the form is the address of the registered office. This can be obtained by searching the records at the Australian Securities and Investments Commission (www.asic.gov.au). If the defendant is using a business name the claim should be issued against the proprietors of the business at the time the claim arose. Their names can be obtained by searching the Business Name Registration records at ASIC Connect.
What documents to provide
If the claim is for property damage, such as the cost of repairs to a car following a car accident, a copy of the repair quote or other documents to prove the amount of the claim should be attached.
Four copies of the claim form and any attachments will be needed. One copy is kept by the court for its file, one is served on the defendant, one is returned to the court with a proof of service completed on the back of the claim and one is given back to the plaintiff. If there is more than one defendant an extra two copies will be needed for each extra defendant.
The Court charges a fee to issue the claim. This fee is $143 as at 1 July 2017. It is added to the amount of which the plaintiff is claiming and if the claim is successful will be added to what the defendant has to pay but must in the first instance be paid to the Court registry by the plaintiff.
The Court gives each new claim a number ('the action number') and stamps each copy of the claim with the Court seal to show that it has been issued. The court needs to know the action number in order to provide any information which the parties ask for about the progress of the claim.
To view the current fees for minor civil actions, visit the Courts Website here.
There are three choices as to how the claim is served:
The court will charge an additional fee for the Sheriff's office to serve the claim. The same fee can be claimed if a licensed process server serves the claim. A process server may charge the plaintiff more than the fee allowed by the court in which case the difference will have to be paid by the plaintiff but cannot be able to be recovered from the defendant. This is added to the amount of the claim but as with the issue fee must in the first instance be paid by the plaintiff.
If the claim is posted to the defendant but is returned to the court as unclaimed the plaintiff will have to either find a new address at which to try to serve the defendant and notify the court or try to serve it personally. If the plaintiff or a licensed process server serves the claim the back of one of the spare copies of the claim must be completed and the claim form filed with the court registry. This is called a 'proof of service'. Unless this is done the court will not know if the claim has been served on the defendant and will not be able to assist the plaintiff to take any further steps to proceed with the claim.
A claim must be served within twelve months of it being issued but this can be extended with the court's permission if the court is satisfied that there are good reasons why it was not served within that period.
- do nothing
- pay the full amount of the claim or come to some arrangement with the plaintiff to resolve the claim - if the defendant 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.
If the defendant does not respond within 21 days, you can apply for judgment to be signed in your favour without the need for a court hearing. To do this, complete a Form 18 and file it with the court with proof that a Minor Civil Claim Form 3 has been served on the debtor, and that you have waited at least 21 days for a reply.
This judgment can be set aside if the defendant can show they did not receive the claim. This is why it is important to find out the defendant's correct address, and, if there is any doubt about the address, to have a Sheriff's Officer serve the claim or serve it personally yourself.
Admission of the claim
If the defendant admits the claim and agrees to pay or act, ensure you negotiate a specific final date for payment or action. If the defendant does not pay or act by the agreed date, follow the process set out above for having judgement signed, and then apply for an investigation hearing.
The defendant can admit liability for all or part of a debt owed. If the defendant only admits part of the debt owed, and you aren’t happy with that, you can continue with the action. However, you may have to pay the defendant’s costs if the court awards you no more than what the defendant paid into the Court.
A defendant can admit liability for a debt by filing an Enforceable Payment Agreement (Form 1B) document with the Court.
Denial of liability
- If the defendant thinks they have a claim against you, the plaintiff, they can complete and file a counterclaim. This is a Form 5 from the Magistrates Court. The filing fee is $143 as at 1 July 2017.
- The counterclaim needs to be filed with the defence, and, if for any reason your claim does not proceed or is dismissed, the counterclaim can still continue as a separate action.
- If you have a counterclaim filed against you, the court assumes you are defending it; therefore you do not need to file a separate defence.
If a defence is not filed within 21 days of service of the claim the plaintiff can go back to the court registry and ask to sign judgment. This is done by filling in a form which the registry can provide. By doing this the claim will become a judgment of the court and can be enforced in the same way as a judgment given by a magistrate after a trial.
It is possible for a defendant to subsequently apply to the court to set aside a judgment obtained in this way, but before the court will do so it would have to be convinced that the defendant had a valid reason for not filing the defence within the 21 days and that they also have good grounds for defending the claim.
Lawyers are only allowed in certain circumstances (if the other party is a lawyer, if all parties agree, or if the court gives permission because it believes a party would be unfairly disadvantaged without legal representation) [see Magistrates Court Act 1991 (SA) s 38(4)].
Once a defence has been filed, the court will post out to both parties the date, time and place of a directions hearing. A directions hearing is not the trial but is held to determine the position of each party and to encourage a resolution of the matter. You do not need to bring any witnesses to a directions hearing. Mediation or conciliation may be suggested by the court.
Examples of orders which may be made at a directions hearing are:
- an order for discovery, that is, that one or both of the parties must provide copies of the documents they will use in court to the other party
- an adjournment for settlement terms - if the parties appear to agree in general but not on the finer points, they will be given more time to finalise their agreement
- a consent order and payment arrangement filed - if the creditor admits to the debt and agrees to a payment arrangement
- a date for trial may be set if no agreement is reached.
It is important that you understand and comply with any orders made by the court at the directions hearing. If you are confused about what orders the court has made, you may get a copy of the court record for your hearing from the court registry. If you do not understand the order, you may ask at the registry.
The case may be referred to an independent mediator or the magistrate may try to get the parties to come to a settlement by agreement. Where a case is settled by mediation or conciliation, the terms of settlement are recorded as a judgment [see Magistrates Court Act 1991 (SA) s 27].
Where mediation does not result in a settlement by agreement, the mediator may certify that mediation was attempted. This may result in a reduction of 50% of the setting down for trial fee, which applies when the matter is listed for trial [Magistrates Court (Fees) Regulations 2004 (SA) reg 4(1a)].
Where the case is referred by the court for mediation, a cost of $500 for conducting the mediation may apply unless the court agrees to waive it. This cost is usually borne equally between the parties and may be recoverable by the successful party at the conclusion of the case [see Third Schedule: Cost Scales, Cost Scale 2: Minor Civil Actions, item 5 contained in the Magistrates Court (Civil) Rules 2013, available here. See also Magistrates Court Civil Practice Directions 2015, Practice Direction 11(6) available here].
Preparing for trial
Before the trial, if one party believes the other party has documents that will be needed he or she can make a written request for a list of the documents that relate to the claim discovery, and request to see them.
If the other party does not comply an application can be made to the court asking for an order that they do so. The court's permission is required to make the application but it can be asked for as part of the application for the order. The application is made by filling a Form 21 and by completing an affidavit explaining that a written request was made and that the other party did not comply with that request. (A copy of the letter sent to the other party should be attached to the affidavit). This application and the supporting affidavit is served on the other party by post and the court fixes a hearing date on the front of the application at which both parties must attend to decide the matter. If an application of this type has to be made it should be done promptly so that there is time for it to come before the court and be dealt with before the trial.
If one party believes someone else has documents which will be needed at the trial and that they will not voluntarily attend at the trial a summons to witness to produce documents can be issued and served on them before the trial. This form can be filled in at the court registry. It is up to the person who asks for the summons to be issued to serve it on the person and this has to be done a reasonable time before the hearing date.
A summons to witness can also be issued and served in the same way to make sure that someone whose evidence is required at the trial (e.g. such as a witness to an accident) will attend. The witness’s reasonable expenses to come to the court have to be paid to them.
If an interpreter is required this can be arranged by the court registry. This should be done as soon as possible after the court date has been fixed.
A setting down for trial fee applies to matters that are listed for trial. This fee varies depending on the value of the claim, and must be paid by the plaintiff within 14 days of the day on which the trial date is set [Magistrates Court (Fees) Regulations 2004 (SA) reg 4(1a)(a)]. The trial will not proceed on the day listed until the fee is paid [Magistrates Court (Fees) Regulations 2004 (SA) reg 4(1a)(c)]. If there is more than 1 plaintiff, the fee can be paid in equal portions by each of the plaintiffs.
To view the current Magistrates Court fees, visit the Courts website here.
Most minor civil claims do not make it to trial. If your matter does go to trial you should be prepared in the following ways:
- ensure your witnesses are available on the day
- ensure you have all relevant documents and evidence you intend to rely on (such as plans, photos, objects, etc)
- arrive at court 15 minutes early and check the time and location of your hearing on the court notice board.
You will be called into the courtroom when it is time to hear your matter. The witnesses will be asked to wait outside. You should stand whenever the magistrate enters or leaves the court and address him or her as "Sir" or "Madam", or "Your Honour".
The procedure for minor civil claims is less formal than in most other courts. The magistrate will conduct the hearing more like an inquiry, and will ask questions of the parties, ask to see documents, and ask questions of any witnesses. Speak slowly and clearly as the magistrate and their clerk will need to write down details. If you are confused about the procedure you may ask the magistrate questions.
Usually a number of other minor claims will be listed to be heard on the same day and the cases therefore have to be dealt with quickly. Although a magistrate can receive written statements from witnesses he is not obliged to do so and it is therefore important to make sure that any important witnesses attend in person.
The procedure followed at the trial is up to the magistrate. Usually the plaintiff will present their case and call their witnesses first. All of the witnesses are able to be questioned by both the magistrate and the defendant. The defendant can then present their case and call their witnesses who can also be questioned by the magistrate and the plaintiff. After the magistrate has heard the evidence, the magistrate usually makes a decision straight away.
If the court is not satisfied on the balance of probabilities (i.e. that it is more likely than not that the facts occurred as the plaintiff has said), then the plaintiff has not proved their case and will not win.
Lawyers are only allowed in certain circumstances (if the other party is a lawyer, if all parties agree, or if the court gives permission because it believes a party would be unfairly disadvantaged without legal representation).
Once the trial has finished, the magistrate will make their decision. Whoever receives judgment in their favour has “won” the case. In debt matters, judgment in your favour may be for the entire debt or for part of it. If you seeking some action from the other party, the court will decide exactly what the other party must do. A judgment in your favour means that the court recognises your claim. If your claim was for money, judgment means that you are owed the debt and that it must be paid.
If you are successful you can ask the court for an order that the defendant pay your witness fees or other out of pocket expenses. The magistrate has the final decision about whether to order the defendant to pay and, if so, how much. A schedule of costs that may be ordered is available at the Courts Authority website at http://www.courts.sa.gov.au.
The court can conduct an investigation summons hearing at the end of the trial to question the defendant about their ability to pay and, if they are unable to pay the full amount at once, can order installment payments be made.
However, a judgment is no guarantee that money will be paid and it is up to you to enforce judgment. Even with judgment, you cannot force someone to pay if they do not have the money.
Many defendants will pay once judgment has been given but you may need to remind the debtor to pay the debt. If you do not think the debtor will pay, you can commence enforcement proceedings immediately after judgment.
From the date of judgment, interest is payable on the debt until it is paid. The rate is set at 10% (simple interest). [Magistrates Court Act 1991 s 35; rule 124(1)]
Under section 34 of the Limitations of Actions Act 1936 (SA), a judgment creditor has 15 years from the date of the judgment to enforce the debt. However, rule 121 of the Magistrates Court Rules provides that if a judgment creditor wishes to enforce a debt after 6 years, the creditor must obtain the leave or permission of the Court to proceed.
The first process in the enforcement of a judgment for a debt is an investigation hearing. If the debtor is present at court when judgment is given, you can ask the magistrate to conduct an investigation hearing into the defendant's financial position. Otherwise, to instigate an investigation hearing you will need to fill out and file a Request to Registrar (Form 18) for which there is a filing fee. A date for the hearing will then be set.
If the debtor owns real estate, a Warrant for Sale (see below) can be asked for on the original application for the investigation hearing.
Before the hearing, the debtor will fill out a form detailing their financial situation. This will include how much they spend on rent, bills, food and other expenditure. During the hearing you will have a chance to question the debtor on this information.
The registrar in charge of the hearing will then usually make an order for the debt to be paid in instalments. The court will only order the debtor to pay instalment amounts they can afford. If the court decides the debtor has no means to pay the debt, you may ask for an adjournment (usually for a year) so that the court can reassess the debtor’s circumstances at a later date.
Is the Debtor a Company?
If the judgment debtor is a company, it can be summonsed to appear at Court on an investigation hearing. Usually a director will attend and be required to produce evidence of the company's ability to pay the amount owing. If the company is unable to pay the debt, it may be appropriate to issue a statutory demand under the Corporations Act 2001 (Cth). You should seek legal advice about this process.
If the debtor fails to comply with two payments under the order made at the investigation hearing, you can apply for an examination hearing by filling out a Request to Registrar (Form 18). There is a filing fee for this form. At this hearing the debtor will be asked to explain why he or she has not complied with the order from the investigation hearing. If the creditor’s circumstances have changed then the instalments to be paid under the order may be modified. If there is no valid reason for not complying with the order, then an order for imprisonment may be made for contempt of court. This does not affect the obligation to pay the debt.
You may wish to consider other orders to facilitate the payment of the debt. These can be made at any time after the investigation hearing. Other orders will not be made if there is a payment agreement in place from the investigation or examination hearings.
Warrant for Sale
A warrant for sale can be issued in relation to either the debtor's real property (land) or personal property (such as non-essential household items). To apply for a warrant of sale, fill in and file a Request to Registrar (Form 18).
Very few warrants for sale of real property will proceed to sale as the debtor will usually pay the outstanding amount before the property goes to auction.
If you wish to apply for a warrant of sale of real estate you must first do a search at the Land Titles Office to discover whether the debtor owns any land (there is a small fee for this service) and enter the details of the title on the form. You must also give a written undertaking that you will pay for any costs involved in the auction of the property. These costs are recoverable from the debtor upon sale of the land.
A warrant for the sale of personal property authorises a Sherriff’s Officer to enter the debtor’s address and seize property of sufficient value to cover the debt. Certain items such as cars under a certain value, ordinary clothing and necessary household goods cannot be seized. Items which are under finance or jointly owned will not be seized. If the debtor is bankrupt, their property cannot be taken. Only about a third of warrants for sale for personal property are successful in recovering any money at all. Therefore, you should consider whether it is worth applying for a warrant for sale. Try to find out whether the debtor owns more than one car or any valuable assets. If not, it may not be worth paying the fee to issue a warrant for sale.
A charging order allows the court to charge the property of a debtor, assuming that the debtor owns any real property. This means that the debt will be registered on the real estate of the person or on the assets of a company. If the property is sold then it will be subject to the charge and you have priority over the owner for the proceeds of the sale, although if there is insufficient equity in the property after any prior mortgage is paid out, you may still not get paid.
To apply for a charging order you will need to do a search at the Land Titles Office to identify any property owned by the debtor. You will then need to make a Form 21 application. In the space provided write “charging order over (name of property) for the judgment debt of $...”. Your application needs to be accompanied by an affidavit which annexes a copy of the title search of the property owned by the debtor and explains why you want a charging order. It then needs to be served on the judgment debtor. You will also need to attend court to get your order. Additional forms and wording may be obtained from the Court Registry.
Once you obtain the charging order, you will need to arrange for it to be registered at the Lands Titles Office. The staff at the LTO should be able to help with the right document to enable you to do this.
A garnishee order is an order that any money owed to the debtor is paid directly to the creditor. It requires the consent of the debtor and it is usually for their convenience. These orders are not common `because if money was available from a third party the debt would usually have been paid at an earlier stage.
If the debt is for more than $5000 you may start bankruptcy proceedings against the creditor. If a person is declared bankrupt then all of their property (with exceptions similar to those for a warrant of sale) comes under the control of a trustee. You may then lodge proof of your debt (the judgment) with the trustee to receive a share of the profits from the sale of the debtor’s property.
Before you commence bankruptcy proceedings consider whether the debtor owns enough property to make declaring them bankrupt worthwhile. If they own real estate (check at the Lands Titles Office) or if they have a position that they will lose if declared bankrupt, then the threat of bankruptcy may force payment of the debt. The cost of bankrupting someone should also be considered.
The first step in bankruptcy proceedings is usually to serve the person with a bankruptcy notice. A bankruptcy notice is a form requiring the debtor to pay the debt within 21 days. This form needs to be filed with Australian Financial Security Authority (AFSA) (formerly ITSA). The costs are listed on AFSA's Fees and charges page.
Once 21 days have elapsed from the service of the bankruptcy notice on the debtor, a creditor’s petition must be lodged in the Federal Circuit Court. The costs vary depending on whether the application is being lodged by a natural person, a publicly listed company or a corporation. See Federal Court and Federal Circuit Court Regulations 2012, Schedule 1 for further details. Some people on low incomes can apply for the fees to be waived.
Sending someone bankrupt is a complex process. Seek independent legal advice before commencing bankruptcy proceedings. Further information on sending someone bankrupt is available from AFSA website. A booklet on creditor’s petitions is available at the Federal Court Registry, Level 5, Roma Mitchell Commonwealth Law Courts Building, 3 Angas Street, Adelaide.
Winding up a company
Winding up a company is the equivalent of declaring a natural person bankrupt. It starts with an application to the Supreme Court and higher costs apply. You should seek legal advice if you wish to wind up a company.
An order for recovery of property
If an order for recovery or delivery up of possession of property has been made by the court, and the court order has not been complied with, you may ask the court to issue a warrant of possession. A warrant of possession authorises the sheriff to take possession of the property and deliver it to you. If the warrant relates to land, the sheriff may eject any person who is not lawfully entitled to be on the land. If the warrant relates to personal property, the sheriff may enter land and take possession of the property, using appropriate means and such force as may be reasonably necessary in the circumstances [see Enforcement of Judgments Act 1991 (SA) s 11].
An order to do something, or to stop doing something
If the court has ordered that a person must do or not do something (excluding orders in relation to payment of money) and the court order has not been complied with, you may ask the court to issue a warrant to have the person arrested and brought before the court to be dealt with for a contempt of the court. In order to bring the person to court, the sheriff may enter or, where necessary, break into land where the sheriff reasonably suspects the person may be present, using such force as is reasonably necessary for the purpose [see Enforcement of Judgments Act 1991 (SA) s 12].
An order in relation to documents
If an order of the court requires a person to execute or sign a document and this is not done, you may ask the court to order the person to execute or sign the document. Alternatively, the court may authorise an officer of the court to execute or sign the document on behalf of the person. A document executed or signed by an officer of the court has the same effect as if it had been done by the person [see Enforcement of Judgements Act 1991 (SA) s 13].
If a party is dissatisfied with a decision of a Magistrate in a minor civil action, they can apply to the District Court for a review of the decision by a Judge. The application for review must be lodged within 21 days of the Magistrate's decision.
Assistance may be sought from the District Court Registry on how to commence the review, including preparing the forms.
District Court Practice Direction 6.7 gives detailed information about presentation of a case for review. A person asking for a review may submit a written case of no more than 6 pages prior to the hearing, or may address the Court at the hearing. The Court can also re-hear evidence given at the initial hearing.
Unless the Court agrees, lawyers are not permitted to represent the parties. However, lawyers can help with the preparation of the written case, which may be useful to help identify and narrow down issues.
In McLeod v Mitchell  SADC 129, the Court described the “unique nature” of a review, and the requirement of the Court to act “act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms”. The Court may affirm the original decision, or rescind it and substitute its own decision. However, it cannot remit the matter back to the Magistrates Court for further hearing, which is sometimes done where there is an appeal in the higher courts. The object of the review is to ensure that the dispute is disposed of with minimal cost, but as fairly as possible.
Ordinarily there is no further right of appeal from the decision of the District Court; the decision is final. In very limited circumstances, a person may ask for a judicial review of the District Court decision, but legal advice should be obtained first.
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.