This information is only a summary to assist you in understanding the considerations required to form a view on where you should commence legal action. It is does not represent legal advice and independent legal advice should be obtained. The decision on where to commence legal action needs to be made by you and should be based on your individual circumstances.
THE FOLLOWING NEEDS TO CONSIDER PRIOR TO COMMENCING LEGAL ACTION.
What is the Fixed Price Fee service? All Magistrate Court actions are prepared by a qualified Lawyer who undertakes overall responsibility for the matter. The fixed fee covers claim preparation, lodgement, service and judgment. It does not include defence of any matters or enforcement.
What is the major difference between QCAT and the Magistrates Court? You have the option of filing the claim EITHER with QCAT or the MAGISTRATES COURT.
1. QCAT was established so that each party could represent themselves in a mediation style process, so costs are kept to a minimum if the debtor defends the matter. With QCAT you are only able to recover your application fee and serving cost, if successful. With the Magistrates Court, the court will award legal costs and interest, if successful.
2. For both the Magistrates Court and QCAT, the Claim needs to be served on the debtor. The process server will make three attempts to serve the Claim at times nominated. If the document is unable to be served and service needs to be re-attempted, additional fees would be applicable. If the debtor cannot be located all fees are still payable there is no refund of the Fixed Price Fee.
3. For both the Magistrates Court and QCAT, the debtor has 28 days from the date they are served to lodge a defence or pay the debt.
4. For both the Magistrates Court and QCAT if the debtor does not file a defence within the 28 days and the debt remains unpaid a default judgement will be obtained.
5. If the claim is defended in the Magistrates Court by the debtor additional costs will be incurred. The Fixed Price Fee does not extend to defended matters. Our Lawyers will contact you if a defence is received, to discuss the claim.
If the debtor responds to the claim in QCAT YOU WILL BE REQUIRED TO APPEAR AND RESPOND. Additional costs will be incurred if you require our assistance with your defence. The Fixed Price Fee does not extend to defended matters.
6. If you are unsuccessful in the Magistrates Court you may have to pay not only your costs but also the debtor’s costs. Therefore, if there is genuine dispute over the facts, you need to make sure that the evidence to support your claim is strong.
If you are unsuccessful in QCAT you only pay your costs. Therefore, if there is genuine dispute over the facts this maybe the best option.
7. For both the Magistrates Court and QCAT you also need to be aware that even when you are successful in obtaining a judgment in your favour, you are still required to take further enforcement action to recover the outstanding amount. There are a number of enforcement warrants that can be used, however if the debtor is unable to pay they may appoint an administrator and the result could be that you may not receive payment. There will be additional costs incurred depending on what type of enforcement action is required.