Filing a defence

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Filing a defence

If there is a legal reason why you do not have to pay some or all of the debt, you can lodge a defence within a limited time at the Magistrates’ Court. You should get legal advice if you want to file a defence.

You may have a defence to a claim if:

  • the creditor acted unconscionably (unfairly)
  • when you agreed to the credit contract you could not afford to repay and the creditor knew this
  • the contract has unfair terms
  • you are not named in the loan contract or the guarantee
  • you do not owe the debt
  • you are under 18 or were under 18 when the debt was made
  • you did not have the mental capacity to agree to a contract when the debt was made
  • you felt you had no choice but to sign, for example, you were threatened
  • the amount the creditor says you owe is wrong (note: the court will let the creditor fix an accidental error)
  • court action against you has been started outside the time limit for the creditor to act.

Time limits

You have a limited time if you want to lodge a defence against a creditor’s complaint to a court. For example, you must lodge a defence within 21 days if you have received a Complaint Form 5A from the Magistrates’ Court, even if you wish to negotiate or claim hardship.

If the court date is in the future you still have some choices. You can get help to try to negotiate the debt or claim hardship. Make sure you get legal advice quickly if you want to file a defence.

How to file a defence

To file a defence at the Magistrates’ Court you fill in the Notice of Defence Form 8A that came with the complaint and take it to court. You will also need to read the overarching obligations. Once you have read and understood your obligations, you must complete the Magistrates' Court Form 4A Overarching Obligations Certification and Form 4B Proper Basis Certification, which certifies that each of your allegations or denials in your defence has a proper basis, and take them to court with the defence. You can get legal help to fill these forms in. If you want to defend the claim you will need to go to court.

If you want to defend the claim get legal advice about your options.

The court will usually set a time for a pre-hearing conference or mediation. After this, if you and the creditor cannot agree you will be given a date for a final hearing.

The court will write to you telling you the date and time of the hearing. Get legal advice before going to court.

Note: in the Magistrates' Court, claims under $10,000 may be sent directly to arbitration, a special kind of hearing.

If you do not file a defence?

If you do not file a defence the court will make a decision without you, and an order 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.

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