If you are served with court documents in relation to a debt you owe a creditor, there may be defences to that claim you can put forward.
You should remember that any defence to a claim in the Magistrates Court needs to be filed within 21 days of it being served upon you.
Examples of defences include:
- the contract or agreement between the parties does not comply with the relevant laws;
- you are not in fact a party to the contract or agreement;
- there were misrepresentations made by the other party when the contract or agreement was entered into;
- you were under the age of 18 at the time the contract or agreement was entered into;
- the plaintiff cannot claim the debt is payable as the debt is statute barred pursuant to the Limitations of Actions Act; or
- the contract or agreement contains unfair conditions or provisions.
The Contract or Agreement between the Parties does not Comply with the Relevant Laws
There are certain requirements that a contract or agreement must meet depending on the type of contract or agreement. Legal advice in relation to the specific position in this regard should be sort.
You are not a Party to the Contract or Agreement
In some circumstances, a creditor may seek to enforce or to sue you for a debt but you are not the appropriate party. This can be common in circumstances where you operate a company and the company enters into a contract or agreement with another party, but you are sued in your personal capacity. It is important to note, that a creditor can sue you individually as well as the company, but additional proof is required. For example, if you signed a guarantee on behalf of the company in your personal capacity, then the guarantee would need to be submitted as proof for you to be sued individually.
Misrepresentation
If you entered into an contract or agreement, such as buying goods, but the information you provided was incorrect or inaccurate, you may have a defence to the claim.
Age Restrictions
In some circumstances, if you are under the age of 18 years when you enter into a contract or agreement, it cannot be enforced against you. However, there are some circumstances where it can be. Legal advice should be sort to clarify this position.
The Debt is Old
Generally, the Limitation of Actions Act prevents the enforcement of the contract or payment under that contract if the claim is made six years after the date the contract was entered into, partial payment was made, or acknowledgement was made in relation the debt still being owing.
Unfair Terms
Unfair contract terms can sometimes be a defence to an action by a creditor if they are pursuing it.
If you have any questions about the above information or you would like assistance, please contact Annette Stone at annette@ballaratlawyers.net.au or on 5303 0283 or Wendy Chennell at wendy@ballaratlawyers.net.au or on 5303 0285.
The information on this website is of a general nature only. It is not, nor is it intended to be, legal advice. You should consult a lawyer for individual advice about your particular circumstances.
Liability limited by a scheme approved under Professional Standards Legislation.
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