So someone owes you money. The legal process is time consuming, but in the end it will be satisfying! I chased a dodgy tradesman all the way!Disclaimer: I am not a lawyer, but this is the process I followed, with some updates as I learnt more.
So someone owes you money. The legal process is time consuming, but in the end it will be satisfying! I chased a dodgy tradesman all the way!
1. Formally ask for a refund.
If you haven’t made them aware they are indebted to you, they’ll have too many opportunities to defend themselves against the following forms and orders. Make sure you document everything. Find an app to print to PDF your sms history, keep copies of letters sent and all invoices and receipts.
2. Send Letter of demand 1
A letter of demand is sent from one party to another when the first party wishes to claim money they believe is owing to them. The letter states the amount that is outstanding, a timeframe for action and advises that further proceedings may be commenced without further notice if the debt is not paid.
I have included a template for Letter of Demand 1 and 2. They are basically the same. The “without prejudice” means they cannot use the letter in court, having said that, do not antagonise them in the letter. You want them to pay before it goes too much further.
DO try to send via registered post so you have a record of the other party receiving the letter.
Wait 7-14 business days
3. Send Letter of demand 2
If they haven’t replied or paid you after the second letter, we stop playing nice.
Once again, wait 7-14 business days
4. Lodge your claim with NCAT – $48
NSW Civil & Administrative Tribunal (NCAT) hears all tenancy, social housing, consumer claims, residential communities, home building and motor vehicle claims. You can lodge these online for $48. In the past I have skipped this step and gone straight to Statement of Claim – it does work as a good kick to the other party to pay up as the ruling is binding.
5. NCAT Appearance (Small Claims Court)
The registratar is generally on your side.
Have copies of everything: SMS history, emails, photos, receipts, invoices, quotes.
Don’t forget to turn up. Don’t be late. Rulings in your absence are binding.
Damaged can only be awarded in extraordinary circumstances, such as months of asking for a job to be completed and constantly being screwed around. Document everything.
The registrar will send both parties to come to an agreement. If you cannot, a further court appearance will be required to hear both sides of the argument, meaning another wasted day. It’s in everyone’s best interest to settle.
If orders are written up, wait 14 days for the other side to pay.
Register at the NSW Online Registry and you’ll never have to set foot in court to file a form or order. It’s amazing.
7. Lodge Certificate of Judgement or Order – $90
You can do this at court or online.
This is what it’s all about. This order is the actual debt that they are legally required to pay and you now have a court file number. Yay! Now you have to choose how you want to enforce this order.
8. Pick your Option
Option A – Notice of Motion – Garnishee order for Wages / Salary UCPR 69
Submit the order to their employer and your debt will be paid from their wages / salary. This MAY be tiny payments over a long term.
Option B – Notice of Motion – Garnishee order for Debts UCPR 69
If you know their bank, submit the order to that bank, otherwise submit the order to all banks. If they have them as a customer, they will remove the debt from the bank account. In order for this to work you must have their bank account OR enough details for the bank to identify them. Name, address at a minimum, date of birth, TFN etc
Option C – Notice of Motion – Writ for levy of property UCPR 65 – $82
Sheriff will visit the address submitted to claim property to the value of the debt. If they are not home, you will have to submit another one. The charge gets added onto the debt each time. If the other party is not at the place specified, you’ll have to pay again. Long and tedious process.
Option D – Notice of Motion Examination Notice UCPR 53
This forces them to visit a court and provide their financial details to the court. They have 14 days to present their financial information to the court or they court may issue an arrest warrant for them. You can also use this method just to mess with them – if it’s gotten this far they deserve it.
Have they paid yet? Rinse and repeat until you receive payment.