Before commencing proceedings in court, a notice of intention to sue should be given to the debtor. If no notice of intention to sue is given, the costs of filing the claim will not be recoverable. Notice of intention to sue can be given by EITHER filling out and serving a Final Notice (Form P1) OR serving a written pre-action notice of intention to commence action (i.e. a Letter of Demand).
A Final Notice (Form P1) gives notice to the defendant that you intend to start an action to claim the debt owed to you. This form can be obtained from the Magistrates Court Registry or or from the Magistrates Court website online here [link opens in a new window].
There is a cost for the form. The Registry will stamp the form, but you must serve it yourself; the court will not do it for you.
After serving the form on the respondent, you must wait a minimum 21 days for a response before taking any further action. Send an Enforceable Payment Agreement with the Final Notice if you are willing to accept payment in installments.
No written pre-action response (explained in further detail, below) is required from the respondent if the prescribed Final Notice form (Form P1) is used [r 332.3(3)]
Written notice of intention to commence action
A written pre-action notice is a formal request that the debtor pay you the money owed.
A final letter of demand can be used instead of a Final Notice (Form P1) but to be considered a written pre-action notice of intention to commence a claim under the Court Rules, it must include:
- the full name and address for service of the creditor;
- identification of the proposed action and the relief to be sought in sufficient detail to enable the debtor to decide whether to admit the claim and to respond to the claim and to make an offer of settlement of the claim; and
- a copy of any expert report relevant to the proposed action
The debtor is then required to serve the creditor with a pre-action written response within 21 days. If no response is served, this may be taken into account in determining any costs awarded in the action. [r 332.3(2)]
The pre-action response must include:
- the full name and address for service of the debtor;
- as far as reasonably practical, a response to each of the creditor’s proposed claims indicating, if there is a dispute, the nature of the dispute;
- if the debtor intends to bring a counter claim or claim a set-off—information as to the nature of the counter claim or set-off;
- a copy of any expert report relevant to the proposed action or any counter claim;
- an offer to settle the action and any counter claim in terms capable of giving rise to a legally binding agreement if accepted; and
- whether the respondent will agree to a meeting or mediation for negotiating settlement of the dispute.
You must serve your Final Notice (Form P1) or pre-action notice (letter of demand) on the debtor.
There are a number of ways to serve court documents.
1. Personal delivery: The documents can be served by handing them to the debtor (or director) as long as you can identify the debtor. If you want to serve the documents personally, you may also use an agent or process server for a fee.
2. Post: The Rules require that documents are served using Express Post. You must keep your lodgement receipt and proof of delivery to exhibit to your affidavit of service.
3. Court Sheriff: For a fee, you can ask the court to serve documents. This ensures that the documents are served properly as long as your address is correct and the Sheriff can find the debtor. The Sheriff will also complete the affidavit of service.
4. Email: If you have previously been communicating with the debtor by email, and you are sure that the debtor uses the email address regularly, you can serve the documents by email. You may also use a business email address if the debtor has one specifically for the service of documents.