Notice of legal action – being sued

Notice of legal action – being sued

Being sued is when a creditor takes court action against you. A court can make an order that you owe a debt. This debt is then called a judgment debt. You will have to pay:

  • the debt
  • the creditor’s legal costs
  • interest on the debt.

Being sued can end up costing you much more money than your original debt.

A court order gives a creditor options to get money back, for example, a creditor can apply to have money taken from your wages or to take and sell things you own, including your home.

Usually a creditor will send a letter of demand before starting action to sue you. Some creditors try to make their letters look like official court documents to make you think court action has started. This is illegal. Get legal help if you are not sure if you have a letter of demand or a court document, as you may have to act fast.

Court documents

Court documents vary slightly depending on the court involved.

Complaints and writs

In the Magistrates’ Court creditors start the legal process by issuing a Complaint Form 5A. The court hears claims up to $100,000. The complaint will say how much money the creditor wants from you. This is the claim. The complaint will also say you need to file a defence within 21 days or risk having a court order made against you.

In the County and Supreme courts the document is known as a writ and is headed ‘Form 5A’. Both of these courts can hear claims for any amount of money over $100,000.

No matter which court is used, the document must show a court reference number and the date the document was filed with the court. It also says what you need to do to respond.

How will I get the court forms?

A complaint will be delivered (served) by an authorised person working for the creditor. The complaint can be delivered to you almost anywhere, for example, at home or work. How you get the complaint will depend on the court involved. For the Magistrates' Court, you do not have to be there to be officially served. The complaint can be given to someone else at your home or work as long as they are over 16 years old. For the County and Supreme Courts, the writ must be given to you. If you do not accept it, it can be placed down in your presence and the person delivering it can explain what it is.

What should I do when I get a court form?

Do not ignore the form. If you ignore these forms, you will lose important rights. Read the complaint or writ carefully. Get legal advice immediately to work out your options.

You may have a defence but you need to act fast. You only have a short time to file a defence. Check the complaint form. In the Magistrates’ Court it is 21 days, in other courts it can be less.

Can I still pay the debt off?

You can still pay the debt off after you have received a complaint. The creditor will probably also want you to pay their legal costs. You will need to negotiate with the creditor about how you will pay. Once this is done, make a written agreement with the creditor. Do this before any actual court hearing begins. Make sure the creditor files a Notice of Discontinuance with the court. This will stop the court action against you.

What if I ignore the court forms and do nothing?

The creditor will apply to the court to have a court order made against you. This is called default judgment. There will be a record of the court order but you will not be told about it. The creditor will then have several options to try to get the debt paid back.

Get help

Find out how you can get help with debt and financial issues.