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How to Serve a Claim

When you have decided to dispute a matter in court and filed the statement of claim in the court, the next step is to serve your claim on the defendant (other party). The purpose of ‘serving’ a claim is to notify the other party of your intention to bring a matter to court. It also provides them with an opportunity to defend the claim. 

The defendant may be an individual or a corporation or trust. If the defendant is an unincorporated entity then you will need to find out who the person is who has been trading as that business.

If you are already engaging in correspondence with the other party about your dispute, they may have appointed a lawyer to liase with you. If this is the case then ask them have they appointed legal representation and if so then will the lawyer accept service of your statement of claim. If they do, you can serve the claim directly to the lawyer.

You can serve a claim through:

  • personal service; or
  • postal service.

The plaintiff can personally serve a statement of claim to individuals and companies at their registered office. It isn’t sufficient to simply pop the statement of claim into their letterbox.

Make sure you get the name of the person accepting service, address, date and time so you can enter this information on your affidavit of service.

Alternatively, you can pay a process server to serve a statement of claim on a defendant personally. A process server is someone that you can hire to issue statement of claims to opponents.

You and the court can both serve company defendants via postal service. However, only a court can serve an individual through the post. It is important to serve the defendant at the correct address as the defendant needs to be aware that the claim exists. If the defendant is not served at their business or residential address then they may claim they had no knowledge of the documents. There are exceptions to this.

Postal service can be a cheaper option, but it can be unreliable as there is a risk that the defendant may not receive the claim. Consequently, if you receive a default judgment on the defendant, the judgment may be set aside if the defendant was not validly served with a copy of the claim. 

Sometimes defendants avoid service by avoiding to answering the door or refuse to let you onto their property. This is known as ‘keeping house’. If you can establish this behaviour with the court, then you can leave the statement of claim at the letterbox. Or, you could attach it to their property in a place where they will see it. You will need to show the court how they evaded service.

Additionally, the court can make orders for substituted service. This refers to orders for service that are not in person. Sometimes, service can even be issued via social media. Essentially, you need affidavit evidence that explains:

  • why you have been unable to serve the statement of claim;
  • the alternate ways that the claim could be brought to the attention of the defendant; and
  • how you know that serving the claim in that manner will result in it being effectively served.

Process servers have experience and know what to do if they come across an evasive defendant. 

After service has been effected it is usual process to complete a sworn affidavit of service which is written evidence that the plaintiff  have served the defendant with the claim.

This affidavit should be filed with the court before the court date.

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