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Frequently Asked Questions
What is a Statutory Demand?
A Statutory Demand is a document that you can send to a company when the company owes you money. It is a common tool used for demanding debts owed by companies and can be a viable alternative if you do not want to take court action against the company for the recovery of the debt.
A Statutory Demand can only be used when the value of the debt exceeds $2,000.00 and the debt itself must be due and payable and free from any uncertainty that it is actually owed to the party making the Statutory Demand.
Once served on the company, the company will have 21 days to pay the debt or it may face the prospect of being presumed as insolvent and then subject to winding up proceedings.
It is important that a Statutory Demand is compliant if it is to be successful. Some of the factors of a compliant Statutory Demand are as follows:
- It must be in writing and correctly identify the creditor, the Company and where the debt can be paid;
- It must state the amount and nature of the debt;
- A court judgment or affidavit must support the Statutory Demand; and
- It must be served on the company correctly.
As well as a Statutory Demand being set aside due to failure to comply with the factors detailed above, a Statutory Demand may be set aside if there is a genuine dispute that the debt is actually owed.
In the event a Statutory Demand is set aside the party making the demand may face an adverse cost order against them. A Statutory Demand requires careful consideration and precise drafting and the circumstances of the debt should always be reviewed before proceeding.
Can I get awarded costs against me at VCAT?
There is often the presumption that VCAT is a tribunal that will not make cost orders against a party that is unsuccessful in a proceeding. While this is generally true as VCAT is a costless jurisdiction, there are circumstances where VCAT may consider it appropriate to award costs.
S109 of the Victorian Civil and Administrative Tribunal Act 1999 (Vic) (“the Act”) contains the factors that VCAT must consider in awarding costs against a party. These are as follows:
- Where a party has conducted the proceeding in a way that unnecessarily disadvantaged the other party. This may include failure to comply with orders or the rules of the VCAT, causing unnecessary delay that results in the proceeding being adjourned due to non-compliance, being deceitful or being vexatious;
- A party prolonging the length of proceedings;
- If a party has made a baseless claim in fact or law; or
- The nature of the proceedings being particularly complex.
VCAT may also make an order for costs in circumstances where one party has offered to settle the proceeding and the other party has rejected that offer. The offer that was rejected must be in the opinion of VCAT not more favourable to the rejecting party than the offer. S112 of the Act provides the details of what VCAT must consider when making a costs order where a settlement offer has been rejected.
Cost orders in VCAT are rare but a party should always seek to comply with the orders and directions of VCAT so as to avoid any cost order exposure. This includes rejecting settlement offers from the party as you should always give settlement offers careful thought.
What is Mediation?
Mediation is a common form of Alternative Dispute Resolution that is often favoured by parties to attempt to resolve disputes between them without having the matter proceed to trial. Almost all jurisdictions now have compulsory mediation that must take place before the matter proceeds to trial.
The role of a mediator is to try and assist the parties in reaching an agreement. A mediator is often a Barrister but can also be a solicitor or other person with specific training in the area of mediation. Typically, before mediation the parties will have to agree on who they want to appoint as a mediator and then organise a venue to conduct the mediation.
In the Magistrates Court of Victoria, there is a mediation service known as the Dispute Settlement Centre of Victoria (DSCV) which provides a service for compulsory mediation where the amount of a claim in dispute is less than $40,000.00. The service is free and is provided by the Court.
A typical mediation session will first involve all the parties and the mediator being together in the same room for a ‘joint session’. The mediator will first invite the plaintiff to summarise their claim and will then ask for the defendant to summarise theirs. It is common for the mediator to ask questions of the presenting party at this point in time. Sometimes the parties may remain in the joint session, but often following the joint session the parties will break off to individual rooms and the mediator will shuttle between the rooms to assist the parties in making offers or reaching resolutions.
If a mediation is successful, the parties will sign terms of settlement detailing the agreement reached and the matter will not proceed any further in the court system. If the mediation is not successful, the parties will then proceed to the next stage on the court’s timetabling of the matter. It is important to understand that mediation is held on a without prejudice basis, which means that should the matter not resolve at mediation, the other party cannot use what was discussed at mediation against you.
Litigating Small Claims of $10,000 or less
There are two common avenues a party may go down when considering litigating a small claim under $10,000.00. The first is in the Magistrates Court of Victoria and the other is VCAT. Both jurisdictions have their pros and cons and generally the decision will come down to how complex the matter is and whether you want a lawyer to be present for the hearing.
While the Magistrates Court has jurisdiction to hear claims up to $100,000.00, there is an arbitration division of the court that deals with small claims under $10,000.00. A matter that is arbitrated in the Magistrates Court is different to most proceedings in this court so far as there is a prohibition on the exchange of court documents other than a statement of claim, defence and list of documents. The limit on Court documents can assist the parties in terms of the costs and time spent and will generally have the effect of making the proceeding simpler. There is also a cap on the amount of legal costs that the court can award.
A common small claim is a claim connected with the supply of goods or services. This sort of claim could be anything from money owed for the supply of a good or service or defects in the goods or services provided. VCAT has jurisdiction to hear these sorts of claims in their Civil Claims List. VCAT is generally less formal than the Magistrates Court, with permission required for legal representation to attend on behalf of a party. When your claim is less than $10,000, lawyers will not be allowed to be involved unless there are exceptional circumstances. An attractive element of a claim in VCAT of this nature is that the matter can generally be listed and heard in a single day.