Guide to assist you in completing the Application to Civil Claims List

Transcription

1 Civil Claims List Civil Division Guide to assist you in completing the Application to Civil Claims List Before you make an application This guide contains information about making a claim at VCAT in the Civil Claims List. All fields marked with an asterisk are mandatory. If you do not provide the relevant information, the processing of your application may be delayed or rejected. If you do not understand any of the questions on the form or require further help call the VCAT Customer Service on or (Rural or Regional Victoria). Anyone can apply about the purchase of goods, the supply of services in trade or commerce, and some claims about land. You can also apply against a person who breaches the Fair Trading Act 1999 (FTA) for example by misleading or deceptive conduct before 31 December 2010, or the Australian Consumer Law (ACL) after 1 January It does not matter whether you are a consumer, trader, company, business or individual, or whether the goods or services were for private or business use. Here are a few examples of the purchases which can lead to claims under the FTA or ACL. There are many others. Debts Household or business goods that are unsatisfactory or don t match their description Services that are unsatisfactory or don t match their description Office goods or services Furniture removal or storage services Dry cleaning Wedding receptions, videos, photographs, dressmaking Claims by or against professionals If you purchase a motor car for less than $40,000 from a motor car trader and after the sale you find the odometer reading on the car (mileage) was false, the sale agreement is incomplete or the car is substantially different from the description in the notice attached to the car you may also apply under the Motor Car Traders Act 1986 (MCTA) for the contract to be cancelled. You can also claim about a building dispute under the Domestic Building Contracts Act What Act are you making this claim under? Please select the appropriate Act under which the claim falls. You may select more than one Act. You only pay the one fee. Are there time limits for applying? You must bring claims under the FTA or the ACL within 6 years of the dispute. Claims under the MCTA must be made within three months of the sale or if you complain to the seller within that time, within one month of making the complaint.

2 If you are making your application in response to any Court action, you cannot submit the application online. You can complete the form online but you will need to print it out and submit it in person/or via the post/facsimile. Are you making this application in response to any court action (other than VCAT) that has been served on you? If so you cannot lodge the application online. You can complete the application but must lodge it in person or by mail or fax. Should your require further information in this regard please contact VCAT Customer Service on or Country Callers on (within Victoria). Fees Please note the following fees apply for applications made to the Civil Claims List Fair Trading Act 1999; where amount sought is under $10,000 $37.90 Fair Trading Act 1999; where amount sought is $10,000 or more but not exceeding $100,000 $ Fair Trading Act 1999; where amount sought is $100,000 or more $ Motor Car Traders Act 1986 section 45 (rescission of agreement of sale of motor car); $37.90 Owner Drivers and Forestry Contractors Act 2005; $ Service of documents Service of the application on the respondents is arranged by VCAT. Applicants are requested to provide to the tribunal, the original with appropriate filing fee and a further copy for each respondent. Applicants should retain a copy of the application for their records. Because the tribunal relies on the address you supply, it is very important that you supply the correct address. See the section on Respondent details below. If after reading this guide you still need further advice you can contact VCAT Customer Service on (03) or (within Victoria)

3 Applicants Details The person who makes the application is called the Applicant. Type of Applicant The applicant must be either an individual, a company, a registered business or a sole trader. Please select the appropriate option. Is the applicant an individual? If the applicant is an individual (e.g John Smith), please select the individual option and provide the following contact details. Individual Name Please provide the title e.g. Dr; Mr; Mrs; Miss, Ms, followed by the surname (last name), given name 1(first name) and given name 2 (middle name). The applicant s address You must provide an address for service on the applicant. Please provide the residential or business address of the applicant for service of documents. Please note a PO Box address is not sufficient. This is the address where all correspondence will be sent. Please provide details of the person the applicant wishes the Tribunal to communicate with, including all applicable telephone/fax/ details. Is the applicant a Company? If the applicant is a company, (e.g. Smith Concreting Services Pty Ltd (ACN )), please select the company option and provide the following contact details. Company Name Please provide the Company name, ACN (Australian Company Number) and ABN (Australian Business Number). If the Company trades under a business name ( eg Smithy s Paving ) please include the business name. Address (PO Box address is not sufficient) You must provide an address for service on the applicant. Please provide the applicant s business address for service of documents. Please note a PO Box address is not sufficient. This is the address where all correspondence will be sent. Please provide the name of the person the applicant wishes the Tribunal to communicate with, including all applicable telephone/fax/ details. Is the applicant a registered business? If the applicant is a registered business (e.g. John Smith and Bill Jones trading as Smith Concrete), please select the registered business option and provide the following contact details.

4 Registered Business Name Please provide the registered business name and ABN (Australian Business Number). Please note you must name all of the owners of the registered business name. You can add additional names of the owners by selecting the Add another business owner tab. Address (PO Box address is not sufficient) You must provide an address for service on the applicant. Please provide the applicant s residential or business address for service of documents. Please note a PO Box address is not sufficient. This is the address where all correspondence will be sent. Please provide the name of the person the applicant wishes the Tribunal to communicate with, including all applicable telephone/fax/ details. Is the applicant a sole trader? If the applicant is a sole trader (a single person, using their own name e.g. John Smith concreter), please select the sole trader option and provide the following contact details. Sole Trader Name Please provide the sole trader s name and ABN (Australian Business Number). Address You must provide an address for service on the applicant. Please provide the applicant s residential or business address for service of documents. Please note a PO Box address is not sufficient. This is the address where all correspondence will be sent. Please provide the name of the person the applicant wishes the Tribunal to communicate with, including all applicable telephone/fax/ details. If there is more than one applicant please select the Add another applicant tab. Respondent details The respondent is the person against whom the claim is made. Type of Respondent The respondent must be either an individual, a company, a registered business or a sole trader. Please select the appropriate option. A Trust (eg John Smith Family Trust) is not a legal entity and cannot be a respondent. In that case, the Trustee is the respondent (eg John Smith as Trustee of the Smith Family Trust, or Smith Concreting Services Pty Ltd (ACN ) as Trustee of the Smith Family Trust), Is the respondent an Individual? If the respondent is an individual (e.g John Smith), please select the individual option and provide the following contact details. Individual Name Please provide the respondent s title e.g. Dr; Mr; Mrs; Miss, Ms, followed by their surname (last name), given name 1(first name) and given name 2 (middle name).

5 Address Please provide the respondent s residential address for service of documents. Please note a PO Box address is not sufficient. This is the address where all correspondence will be sent. Please provide details of the person you wish the Tribunal to communicate with, including all applicable telephone/fax/ details. Is the respondent a Company? If the respondent is a company, (e.g. Smith Concreting Services Pty Ltd (ACN )), please select the company option and provide the following contact details. Company Name Please provide the respondent s Company name, ACN (Australian Company Number) If the Company is trading under a business name (e.g. SCS Pty Ltd ACN trading as Smith Concreting Services) please include the business name. Address (PO Box address is not sufficient) The VCAT Act 1998 and the Corporations Act 2001 provide that service on a company is affected at the company s registered office. This may be different to the address shown on the company s letterheads or invoices. You should send the tribunal with the application a copy company extract obtained from Australian Securities and Investments Commission (ASIC), which includes the registered office. You must pay ASIC a fee for this. You may visit ASIC s website at If you are unable to access the internet information, contact an ASIC business centre near you. Phone to find out which one is closest to you. Please provide the Company s business address for service of documents. Please note a PO Box address is not sufficient. If you do not supply the company s registered office and service is invalid, your case may be adjourned or an Order you obtain may be set aside. The address you provide is where all correspondence will be sent. Please provide the name of the person you wish the Tribunal to communicate with, including all applicable telephone/fax/ details. Is the respondent a registered business? If the respondent is a registered business (e.g. John Smith and Bill Jones trading as Smith Concrete), please select the registered business option and provide the following contact details. Registered Business Name Please provide the respondent s registered business name and ABN (Australian Business Number). Please note you must name all of the owners of the registered business. A business extract naming the proprietors and the status of the business must be attached. You must pay a fee for this. It may be purchased in person or by post from Consumer Affairs Victoria at: 113 Exhibition Street, Melbourne VIC Tel:

6 NB the screen information from the Business Affairs internet site is not sufficient as it only provides an ABN number and not the proprietor s names. Address (PO Box address is not sufficient) Please provide the respondent s residential or business address for service of documents. Please note a PO Box address is not sufficient. This is the address where all correspondence will be sent. Please provide the name of the person you wish the Tribunal to communicate with, including all applicable telephone/fax/ details. Is the respondent a sole trader? If the applicant is a sole trader (a single person, using their own name e.g. John Smith concreter), please select the sole trader option and provide the following contact details. If the respondent is a sole trader a single person, using their own name e.g. John Smith concreter) please select the sole trader option and provide the following contact details. Sole Trader Name Please provide the sole trader s name and ABN (Australian Business Number). Address (PO Box address is not sufficient) Please provide the sole traders residential or business address for service of documents. Please note a PO Box address is not sufficient. This is the address where all correspondence will be sent. Please provide the name of the person you wish the tribunal to communicate with, including all applicable telephone/fax/ details. If there is more than one respondent please select the Add another respondent tab. Details of Claim - What do you want VCAT to do? What is the value of your claim? You can make your claim under the Fair Trading Act 1999, the Australian Consumer Law, the Domestic Building Contracts Act 1995, the Motor Car Traders Act 1986 or the Owner Drivers and Forestry Contractors Act 2005;. Please note you must provide the monetary value in the specified field. The monetary value is the amount of the claim. NB The claim amount specified will determine the application fee payable. The fees are listed above. To check the current fee, visit the VCAT website at What do you want VCAT to decide and order? You must select at least one option. It is important that you clearly state what the applicant is claiming, so that the respondent fully understands exactly what it is that the applicant wants the Tribunal to do. The options are - Payment of money (including damages) If you are seeking payment of a debt on an unpaid invoice, attach a copy of the invoice. Order that a debt is owed or not owed Use this option ifyou are seeking a determination that a claim made against you is wrong.

7 Review, vary or cancel a contract If you seek a change or termination of a the current contract. Order to comply with a contract If you want the respondent to comply with a contract. Damages or other orders for failure to comply with a consumer guarantee for goods or services supplied after 1 January If you purchased goods and services after 01/01/2011and are seeking damages or other orders under the ACL under a consumer guarantee. Damages or other orders for misleading and deceptive conduct, false representation or unconscionable conduct If you are seeking damages or other orders for misleading and deceptive conduct, false representation or unconscionable conduct. To declare unfair terms in a consumer contract You must complete the date of the contract and attach a copy of the contract. You must specify what are the terms that you say are unfair. Recission (cancellation) of a sale of a motor car you purchased for $40,000 or less This is for an application lodged under the Motor Car Traders Act Please refer to the first page of this guide which explains claims lodged under the Motor Car Traders Act Other Specify details as required in the box provided. Describe the goods or services purchased or provided? Please briefly describe the goods or services purchased or provided.(i.e- provided painting services, purchased a television). Please ensure that you enter the date of contract and date of dispute details in the specified field. Please provide more detail regarding the claim and the history of the dispute. You must give complete details about your claim so that the respondent is able to understand why you have made the application. If compensation is sought you must set out each amount that is claimed. If you do not provide enough information, your application may be dismissed or adjourned. If you need more space, print clearly on a separate piece of paper and attach to this application. Is the applicant making this application in response to another VCAT application that has been served on the applicant? If you have selected the option Yes, please provide the VCAT reference number so that the tribunal can match up the relevant matters. Are you making this application in response to any Court action (other than VCAT) that has been served on you? Whatever the value of your claim you may ask the Court to transfer your case to VCAT. The Court may do this if it is satisfied that your case arises mostly from a consumer and trader dispute and it would be more appropriate for VCAT to deal with it. Please advise the amount the Court action is seeking from you and provide the Court reference number.

8 Are you making a Trust application? If you are the purchaser (not the supplier), the Court action against you is for $10,000 or less and the case has not commenced to be heard in the Court, you also have the option to pay VCAT the amount the Court is seeking from you so the action will be automatically dismissed and transferred to VCAT. If you decide to do this, you must act very quickly. VCAT will hold the money until it makes an Order in the case. If selecting this option please attach the amount the Court is seeking from you( not including costs) by way of a bank cheque/money order made payable to VCAT or cash if paying in person. Please also attach a copy of the originating court document ( eg the Writ or Complaint). If you are making this application in response to any Court action, you cannot submit the application online. You can complete the form online but you will need to print it out and submit it in person/or via the post/facsimile. Security Hearing arrangements If you are concerned about security, please forward your request/concerns in writing to VCAT. For further information, please contact our customer service centre Interpreter If the applicant or the respondent requires an interpreter, it is important you complete this section of the form. The matter may need to be adjourned if you have not provided these details. If the applicant or respondent do not require an interpreter you must select no. If you select yes you must insert the language/dialect required. Special assistance Please use this section to advise VCAT if any person attending the hearing requires any special assistance, for example, hearing loops, wheelchair access and speech assistance. For further information, please contact our customer service centre Supporting documents You must attach the following documents with your application Proof of ACN If the respondent is a company you must provide proof of the companies ACN. A copy of the ASIC search or a receipt or invoice from the company which includes the ACN. Proof of Business name If the respondent is a registered business you must supply a copy of the Business Name extract naming the owners of the business and the status of the business (ie registered or deregistered) You may attach other supporting documents

9 Other supporting documents including further details of your claim, copies of invoices or receipts for goods or services purchased, a copy of contract for goods or services purchased, or a copy of consumer contract specifying unfair terms. Payment details You must pay a prescribed fee for your application to be lodged. To find out the current fee, please visit the VCAT website at If mailing the application you can pay by credit card, cheque or money order made out to the Victorian Civil and Administrative Tribunal. If Faxing the application to , you can only pay by credit card. If paying by credit card, you will also need to complete a Payment by Credit Card form available at or by calling VCAT. If paying in person at the Ground Floor, 55 King Street, Melbourne, you can pay over the counter by credit card, cheque, money order, cash or eftpos. A person who wishes to have a fee waived is required to complete the fee waiver form. This form and gudelines on how to complete the form are available from the VCAT website at or by contacting the Customer Service section on (03) The tribunal cannot proceed with the application until either the fee is paid or the fee has been waived. Acknowledgement Please ensure you provide your full name and date your application in this section. Also remember to tick the checkbox confirming that you have read and understood the statements specified under the acknowledgement section. Privacy Statement The information collected in this application will be used to assess the application and determine eligibility to initiate a proceeding at the. The Victorian Civil and Administrative Tribunal Act 1998 governs what information is available to the public. The Information Privacy Act 2000 (the Act) and the Victorian Privacy Principles set out the requirements that persons must abide by. Section 10 of the Act refers to Courts and Tribunals and the exemptions that apply to them. For further information regarding VCAT's privacy policy, please visit

10 You can lodge your application electronically or by: Lodgement Mailing it to: Civil Claims List Victorian Civil and Administrative Tribunal GPO Box 5408 Melbourne Vic 3001 Or DX Melbourne Delivering it in person to: Victorian Civil and Administrative Tribunal Civil Claims List Ground Floor 55 King Street Melbourne Vic 3000 Office hours: 9am-4.30pm Monday to Friday (closed public holidays) Faxing it to:

11 Checklist Have you paid/arranged for fees to be paid/waived. Have you provided the applicant s/respondent s current address Have you provided the ABN / ACN numbers, where applicable Have you provided a value of your total claim. If you are making this application in response to another application at VCAT that has been served on you, have you provided the VCAT reference/file number. Have you provided the grounds/reasons for this claim. Have you specified the documents that will be attached to this application. Have you acknowledged the application by providing your full name in the acknowledgement section. Have you kept a copy of your application.