Court documents served

The initiating document will vary depending on the court involved.

In the Magistrates’ Court of Victoria, creditors start the legal process by issuing a Complaint Form 5A.  The Magistrates’ Court hears claims up to $100,000.

In the County Court and the Supreme Court of Victoria, a Form 5A will be issued (see County Court and Supreme Court forms) .  These courts can hear claims for any amount of money over $100,000. The Complaint or the Writ will explain what the client needs to do to respond.  The following timeframes apply:

  • Magistrates’ Court – the client has 21 days from the date the Complaint is served to enter a Notice of Defence Form 8A; and
  • County Court or Supreme Court – the client has 10 days from the date the Writ is served to file an appearance. If an appearance is not filed, the client will not be able to file a defence. Once the appearance is lodged the client has 30 days to file a defence. Proceedings in relation to mortgages will usually be commenced in this jurisdiction.

If the client does not file a defence, the creditor can apply for an order for the total debt, plus costs and interest (starting from the date of the court proceedings). The court will then make the orders without a hearing and the judgment will be entered on the court file.

Even if the time for entering a Defence has passed, if the creditor has not applied for judgment, you may still be able to negotiate with them to avoid judgment being entered. You should seek a commitment from the creditor that they will not apply for default judgment while negotiations are on foot.

Refer to defending a claim for more information.

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