NOTE We are small claims lawyers we are not the small claims court.
In relation to the small claims court Qld, minor debt disputes are heard by the Queensland Civil and Administrative Tribunal (“QCAT“) in Brisbane and in Local Magistrates Courts.
Our small claims lawyers are also able to commence debt recovery in the Magistrates Court Qld, if you have a debt of less than $150,000.00.
This article will detail the advantages and disadvantages of both, the potential costs involved and answer all of your debt recovery questions and the advantages of engaging small claims lawyers to recover your debt.
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Small Claims Lawyers in QCAT
The QCAT minor debt jurisdiction hears debt recovery matters of up to $25,000.00.
Schedule 3 of the QCAT Act defines:
“Minor civil dispute” means … a claim to recover a debt or liquidated demand of money, with or without interest, of up to the prescribed amount
Schedule 3 of the QCAT Act then goes on to say:
“Prescribed amount” means $25000.
The types of debt disputes which might arise include:
- Unpaid personal loans;
- People – friends or relatives who owe you money;
- Unpaid business or company invoices;
- Commercial / business unpaid rent (not residential);
- Cheques that have bounced; and
- Breach of contract for payment of goods and/or services.
Minor Debt Eligibility
As mentioned above, the type of debt allowable are eligible debts in the small claims Court QLD.
These types of debts do not include:
- Debts of more than $25,000.00 (see below for Magistrates Court);
- If there was no contract or agreement to pay the debt (written, verbal, or partly written & partly verbal);
- Consumer or trader complaints, and not a purely debt dispute;
- A debt arising from repair of a defect on your car or other vehicle;
- A debt arising from property damage caused by a car or vehicle; and
- A debt for non-payment of wages or superannuation.
The debt cannot be recovered by small claims lawyers if it has been more than (6) years since the breach. Section 10 of the Limitation of Actions Act 1974 (QLD) says:
The following actions shall not be brought after the expiration of 6 years from the date on which the cause of action arose … an action founded on simple contract or quasi-contract
However, section 35(3) of the Limitation of Actions Act 1974 (QLD) says:
Where a right of action has accrued to recover a debt or other liquidated pecuniary claim … and the person liable or accountable therefore acknowledges the claim or makes a payment in respect thereof, the right shall be deemed to have accrued on and not before the date of the acknowledgment or the last payment.
In the small claims Court (and all jurisdictions) you only have six (6) years from when the cause of action arose to make your claim, unless you have a written acknowledgement of debt, or the debtor makes some payment, then the six (6) year limitation period starts again from that date.
If you are owed an eligible debt in Queensland, and you meet the criteria above, then our small claims lawyers can start the small claims / minor debt procedure in QCAT.
Small Claims Lawyers in QLD
A QCAT minor debt claim is commenced by making an application to the Tribunal.
You can make this application online on the QCAT website, or you can download a QCAT Form 3 – Application for minor civil dispute – minor debt.
You are the Applicant in a minor debt application, and the person who owes you the debt is the Respondent in the application. This makes sense, you are applying, and they are responding.
The QCAT Form 3 should include the following:
- Your full name, contact details, and address for service;
- The Respondent’s full name, contact details, and address for service;
Note: If the respondent is a company or business, check the ASIC website to ensure that you have the right entity. If you have a business name, check the business name registry to see what entity owns the business name. It is very important to correctly identify the Respondent.
- Full and detailed particulars of the debt, including, dates, times, amounts owing, what the debt is owing for, your performance of the agreement, etc;
- All supporting documentation, copy of the contract, emails, text messages, and any other document which supports your claim;
- The amount claimed for interest. If you do not have an agreed amount of default interest in a contract, then you can use the Qld Courts Interest Calculator – print it out and include it with your supporting documents; and
- An amount for costs.
Rule 84 of the QCAT Rules prescribe costs to be:
(a) the prescribed fee for filing the application for the claim;
(b) a fee charged by a service provider for electronically filing a document;
(c) a service fee and travelling allowance at the rate of the prescribed bailiff fees;
(d) a business name or company search fee.
Filing the QCAT Minor Debt Application
Rule 24 of the QCAT Rules says that:
(1) An application, referral or other document in a proceeding may be filed—
(a) in person; or
(b) by post; or
(c) electronically, (email) in the way prescribed by a practice direction; or
(d) if the document is an application or a referral for a proceeding other than a proceeding for a minor civil dispute and there is no fee payable for the document—by fax.
So, this means that for a minor debt claim in the small claims Court, small claims lawyers can file four (4) copies of your application in person, by post, or by email, at QCAT or in the local Magistrates Court mentioned in QCAT Practice Direction No 2 of 2011, as long as you comply with the practice direction.
QCAT address – QCAT registry office, level 9, 259 Queen Street, Brisbane.
Local Magistrates Courts can be found here.
You can contact the QCAT registry by:
- Email – email@example.com
- Phone – 1300 753 228
- Visit – Level 9, 259 Queen Street, Brisbane
- Posting – GPO Box 1639, Brisbane QLD 4001.
QCAT Filing Fees
The cost for filing a minor debt application in QCAT (small claims Court) is based upon how much the debt is.
- If the debt is $0 to not more than $500 – Fee is $26.95
- If the debt is $500 to $1,000 – Fee is $69.20
- If the debt is $1,000 to $10,000 – Fee is $123.20
- If the debt is more than $10,000 – Fee is $345.80
In some cases you can defer payment of the filing fees until the outcome of the minor debt proceeding.
These fees are subject to change so it is best to check the website here – https://www.qcat.qld.gov.au/resources/fees-and-allowances
Serving the Sealed QCAT Application
Once our small claims lawyers get the sealed copies of the application back from the Court or Tribunal (that is stamped with the Court’s seal) you then have to serve the application on the Respondent.
A copy of an application for a minor debt claim may be given to an entity only by delivering it personally to the entity in the way provided in the service practice direction.
Personal service on an individual – This procedure applies to personal service of a document on an individual in Queensland, generally:
The original or a copy of the document must be given to the individual in person … or put the application down in the individual’s presence and state what the document is … it may be served by being left with someone who is apparently an adult living at the individual’s last known place of business or residence.
QCAT Practice Direction No 8 of 2009 then says in relation to a company:
Personal service on a corporation – A document may be served personally on a corporation in Queensland by:
leaving it at or posting it to the company’s registered office; or serving it personally on a director of the company who resides in Australia or in an external Territory.
QCAT Practice Direction No 8 of 2009 then says in relation to a business:
Personal service on a business
The document may be served by leaving a copy at the place of business with a person who appears to have control or management of the business there.
There are other forms of personal service in the QCAT Practice Direction No 8 of 2009, however these are by far the most common.
You can also use a process server to personally serve your documents.
What Happens Next in Small Claims Court QLD
Once served with your application, the Respondent has 28 days to file and serve you with a response to your claim.
If no response is filed or served, then QCAT will give you a decision in default. Section 50 of the QCAT Act allows for the Tribunal to make this decision in default.
If the Respondent does file a response, then it will go to a mediation or a hearing and a QCAT Member will make a decision, the Respondent owes the debt amount, owes another debt amount, or does not owe the debt amount.
Advantages and Disadvantages of QCAT in Small Claims Court QLD
The advantages of commencing proceedings in QCAT are:
- It is a lot less expensive than commencing in the Magistrates Court;
- The process can be a lot quicker than the Magistrates Court;
- QCAT is designed for self-represented people and not small claims lawyers.
The disadvantages of commencing proceedings in QCAT are:
- The minor debt jurisdiction is mostly a no costs jurisdiction. This means that you will not be able to recover your costs save for a few designated items as mentioned above;
- Small claims lawyers do not have an automatic right of appearance. This means that if you want us to appear at a QCAT hearing, you will need the leave of the tribunal, which is not always given.
Small Claims Lawyers in Magistrates Court
The Magistrates Court has jurisdiction to hear debt claims of up to $150,000.00.
There are a lot more rules, and the rules are applied more strictly in the Magistrates Court, than they are in QCAT. We recommend that you seek legal advice before attempting to draft these documents yourself.
Small Claims Lawyers in the Magistrates Court
A proceeding in a court may be started in any central registry of the court.
Schedule 3 of the UCPR says:
“central registry” means … the registry of a Magistrates Court in the central division of the Brisbane District, or at Rockhampton, Townsville or Cairns.
Rule 35 of the UCPR says:
A person must start a proceeding before a court in 1 of the following districts—
The district in which the defendant or respondent lives or carries on business; if there is more than 1 defendant or respondent—the district in which 1 or more of the defendants or respondents live or carry on business; if a defendant has agreed or undertaken in writing to pay a debt or another amount at a particular place—the district in which the place is located; or the district in which all or part of the claim or cause of action arose;
So, once you have the Claim and Statement of Claim drafted correctly, and you have filed them in the correct registry, you will receive a sealed version from the Court.
You then have to personally serve the sealed Claim and Statement of Claim.
Personal Service of Originating Process
Rule 106 of the UCPR says:
(1) To serve a document personally, the person serving it must give the document, or a copy of the document, to the person intended to be served.
(2) However, if the person does not accept the document, or copy, the party serving it may serve it by putting it down in the person’s presence and telling him or her what it is.
(3) It is not necessary to show to the person served the original of the document.
We suggest using a process server to serve your claim and statement of claim. A process server will serve the document correctly, and provide our small claims lawyers with an affidavit of service.
Once served, the Defendant will have 28 days to file a defence and a notice of intention to defend.
What Happens Next?
If the defendant does not file a defence and a notice of intention to defend in the 28 days, you can request default judgment from the Court. This is a judgment in the full amount of the Claim.
If the defendant does file and serve a defence and a notice of intention to defend, then you have fourteen (14) days to file and serve a Reply (and Answer to any counterclaim).
It starts getting complicated from this point forward. We strongly advise seeking legal advice.
Enforcement of Money Orders
If you are successful in QCAT and have registered your QCAT decision in the Court, or you were successful in the Magistrates Court, and your judgment debtor still does not pay, you may need to commence enforcement proceedings to enforce the judgment debt.
Read more about enforcement of a QCAT Decision.
Read more about enforcement of a Magistrates Court Judgment.
To Sue or Not to Sue – Small Claims Lawyers
Before you attempt small claims court QLD proceedings, either in QCAT or in the Magistrates Court, you should ask yourself the following:
- Has the debtor got any money or assets?
- If the debtor likely to go bankrupt or into liquidation?
- Does the debtor have a number of different creditors chasing debts?
- Is there a genuine dispute over the debt?
- Do you have sufficient evidence to support your claim?
- Can you afford to spend the money on legal fees, or take 1 or 2 years?
The Court and Tribunal encourage litigants to try to settle the matter before resorting to litigation.
The commercial reality is that you are not likely to get every cent you spend on legal fees, back from the debtor. In a lot of instances it makes sense to compromise and accept a lesser amount, in exchange for immediate settlement.
Debt recovery through the small claims – minor debt system in Queensland can be complicated and costly. We recommend engaging suitably qualified legal practitioners.
DEDICATED FOCUS – COMMERCIALLY MINDED – PROVEN RESULTS
OR CALL: 1300 545 133 FOR A PHONE CONSULTATION
Wayne Davis, LLB, GDLP – Commercial litigation solicitor and legal practice director at Stonegate Legal Pty Ltd. Stonegate Legal have a focus on commercial and civil disputes, debt recovery, the enforcement of money orders, bankruptcy and corporate insolvency. Wayne is also a committee member of the Sunshine Coast Law Association.