The Law Handbook 2024

350 Section 5: Managing your money apparently over the age of 16, but where the usual residence is a hotel, boarding house or similar establishment, only to a person over 16 who is apparently in charge of the establishment or engaged in the office of the establishment; or 3 a business where the debtor is the owner or one of the owners of the business name: here the complaint must be delivered to someone apparently over the age of 16 who is apparently in charge of the business or is employed in the office of the business. The creditor or a process server acting for the creditor must sign an affidavit or declaration of service (form 6A) stating that they served the complaint at a particular address. If as a debtor you were not served with the complaint, you may have grounds to apply for a rehearing of any order made against you (see ‘Applying for a rehearing’, below). What to do with a complaint If you receive a complaint, act immediately. It will not show a date for a hearing, because a complaint allows for automatic judgment to be made against you unless you lodge a notice of defence within the required timeframe of receiving the complaint (usually 21 days). This means that the court can make an order against you without you having to appear in court. It is called ‘judgment in default of defence’ (see ‘No defence’, below). Seek legal advice as soon as possible to decide whether to lodge a notice of defence. You may contact a private solicitor, a legal service or financial counsellor for advice. See Chapter 5.4 for a list of financial counselling services, and Chapter 2.4 for legal advice services. Notice of Defence A Notice of Defence is a document informing the court and the creditor that you will defend the matter. It must be on the appropriate court form (form 8A). A Notice of Defence should be lodged within 21 days of receiving the complaint (if you are in Victoria) to avoid judgment being entered against you. Therefore, it is vital that you make a note of the date on which you were served with the complaint. However, note that you may still lodge a defence after the 21-day time period has expired if the creditor has not entered judgment against you. Do not lodge a Notice of Defence automatically; first, seek advice from a lawyer or financial counsellor. They can advise on any defences available to you. See Chapter 5.4 for a list of financial counselling services. If you cannot lodge a Notice of Defence within 21 days, you should seek the creditor’s consent to an extension of time to allow you sufficient time to prepare the Notice of Defence or to obtain advice. If you have not done so in the context of the proceedings, you need to comply with the requirements of the CP Act, and file the form 4A (or 4AB) and form 4B certifications with a Notice of Defence. If you lodge a defence without good reason, the creditor may seek an order for summary judgment, which could overcome your defence. Before you lodge a Notice of Defence check: 1 at which court the hearing will be held; 2 the amount being claimed; and 3 whether any defences exist (see ‘Defences if you are sued’, below). Inappropriate court venue If the complaint has not been issued at the court nearest to your address, you may apply for a transfer under rule 47.01 of the Magistrates’ Court General Rules. You must lodge a Notice of Defence at the court where the complaint was issued. You must then give to the creditor a written objection to the venue within 14 days of lodging a Notice of Defence. If the creditor does not agree to a change of venue after receiving the written objection, you may apply to the court for the venue change within 14 days of giving the written objection. Transferring the hearing to the appropriate court venue causes delays and may result in an order for costs against the creditor. If the complaint arises out of a consumer and trader dispute, you may be able to transfer the matter to the Victorian Civil and Administrative Tribunal ( VCAT ) under section 188 of the Australian Consumer Law and Fair Trading Act 2012 (Vic). VCAT is a cheaper and less formal forum that can resolve disputes comparatively quickly. (See ‘Court or tribunal help’ in Chapter 7.4: Taking action as a consumer.) Amount claimed It is essential to make sure the amount claimed in the complaint is correct. If the account is long and includes