Minor Case Claim Help [WA] - Serving Documents On Mobile Business

[Deactivated] on 14/08/2017 - 14:09
Last edited 14/08/2017 - 16:29 by 1 other user

I'm looking at filing a claim to recover ~$900 in debt owed to me for a service I gave a business.

I've been reading up on the process and noticed it states "Address for service of a business. Must be the place of business address of the business." to deliver the court documents. The issue is that I'm dealing with a mobile business so the only address I have is the address for service of documents as their is no place of business address since they don't have a shop front.

Another question I have is, what happens if the chosen court date is on a day that I won't be in the state. Can I request to have it changed or is the date final?

I would appreciate any advice as this is my first time filing a claim and I want to do it right because I know I'll win the case if I go about this correctly.

EDIT TO ADD MORE QUESTIONS:

Can I claim a deduction in the fees as I'm a small business?
How can I claim the fees as part of the money owed if I win the case?

• 

  altomic on 14/08/2017 - 14:15

  +1

  Do they have an ABN? Registered ABN address.

  Otherwise I note that recently in Qld the courts started accepting electronic delivery of documents.

  • 

    [Deactivated] on 14/08/2017 - 14:23

    Yes, they have an ABN and a registered business name. Linked to the registered business name is an "address for service of documents" but no address for "place of business".

    Don't think that's available in WA.

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  adam45 on 14/08/2017 - 14:52

  +4

  Lawyer here.

  Is the business name registered to a company or an individual? That will affect how you need to serve the claim.

  If it is an individual, you need to serve it in accordance with Reg 58 of the Mag Court minor case procedure rules 2005 (http://www.austlii.edu.au/au/legis/wa/consol_reg/mccpr200546…).

  If it is a company, send it by post to its registered office. A company's registered office address can be found by doing a current company search on ASIC's website (there is a fee of about $25 for that).

  If you aren't going to be available on the date for a hearing, you can make an application to the Court for an adjournment. You will probably have to file an affidavit explaining why the adjournment is required.

  • 

    [Deactivated] on 14/08/2017 - 15:20

    +1

    ABN Lookup says "Entity type: Australian Private Company" so company.

    The issue is that when the contract was signed, they were a sole trader with a registered business name and now they're a company with a registered business name. My contract is with the registered business name and not the company, does that make a difference?

    Also, just to confirm. I found an address for "Address for service of documents" and an address for "Principal place of business" for the business name but not the company. Is this the address you're referring to? If not, I'm assuming I have to buy the document called "Current company information" for the company.

    Thanks for the help thus far, I appreciate the fact that you're helping me as I wouldn't be able to afford legal help otherwise.

    • 

      bargainswarrior03 on 14/08/2017 - 16:26

      Hi nurries,

      I believe you should be pursuing the person who is the sole trader because the contract is with you and him/her. This person owes the debt personally to you because sole traders are legally responsible for business debts (privity of contract rule ie you go after the other person who signed the contract).

      Do you have the contact details of the person who is the sole trader? Contact the person, you will have to personally serve the documents to this person like what Adam45 said.

      You would only contact the private company itself if that person can show on paper that the company has agreed to accept liability for this debt ("assigning the debt"). If this is the case, the "Address for service of documents" is where you should send the documents.

      • 

        [Deactivated] on 14/08/2017 - 16:27

        The contracted is address to "business name" but it's signed for by the sole trader.

        So I'm a bit confused.

      • 

        bargainswarrior03 on 14/08/2017 - 16:31

        @nurries: Hey, I just said that when you sign a contract with a business as a sole trader, you are entering into the contract with the person who signed the contract. The sole trader is the business. You are suing the sole trader

        Adam45 is saying the same thing.

        Other than that I am not sure if there is room for any more confusion

      • 

        [Deactivated] on 14/08/2017 - 16:33

        @bargainswarrior03:

        Thanks for clearing that up. So I'll have to put the claim in against the sole trader then since this contract was signed before the forming of the company.

    • 

      JIMB0 on 15/08/2017 - 09:46

      Principal place of business

      That is where you would send the bikies.

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  adam45 on 14/08/2017 - 16:24

  Your contract is with the entity as it was at the time of entering in to the contract. You cannot enter in to a contract with a business name - only the individual/company behind the business name. As you have explained it, you did not enter in to a contract with the company, so cannot sue the company.

  It sounds like your claim is against the individual who, at the time of entering in to the contract, owned the business name.

  If that is the case, you will need to serve them personally, in accordance with Reg 58.

  • 

    [Deactivated] on 14/08/2017 - 16:28

    When you say personally, do you literally mean in person?

    • 

      whooah1979 on 14/08/2017 - 16:44

      When you say personally, do you literally mean in person?

      entity.

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  adam45 on 14/08/2017 - 16:34

  +1

  As I said…I mean in accordance with Reg 58. http://www.austlii.edu.au/au/legis/wa/consol_reg/mccpr200546…

  • 

    [Deactivated] on 14/08/2017 - 16:35

    Thank you. Would you be able to answer a couple more questions, please.

    Can I claim a deduction in the fees as I'm a small business?
    How can I claim the fees as part of the money owed if I win the case?

    Once again, I really appreciate your valuable time!!

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  adam45 on 14/08/2017 - 16:37

  Yes you can.

  Read the guides and information available on the Magistrates Court website. There is information about fees for individuals and small business there. The guides that are published make the whole process pretty clear.

  • 

    [Deactivated] on 14/08/2017 - 16:40

    Thanks, I'll have a look at those again.

    One last question, what happens if the registered business name under the sole trader is cancelled? ABN Lookup says the business name was registered from 2013 to end of 2016. Is it still the same process?

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  chumlee on 14/08/2017 - 16:44

  I don't think it's worth it for $900.

  Even when you win you are probably going to have to take action to recover the money if he/she doesn't pay up

  • 

    [Deactivated] on 14/08/2017 - 16:53

    Based off this, it doesn't look like it would be too difficult to enforce the judgement?

    http://www.magistratescourt.wa.gov.au/_files/Civil_factsheet…

    • 

      chumlee on 14/08/2017 - 17:56

      Does this person own anything of value?

      • 

        [Deactivated] on 14/08/2017 - 18:11

        Considering the business they're running, yes. At minimum $10k + car etc

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  adam45 on 14/08/2017 - 16:51

  You need to stop getting caught up with the business name. It is just a name. You cannot enter in to an agreement with a name.

  Your claim is against the person with whom you entered in to the agreement. The business name is not relevant.

  • 

    [Deactivated] on 14/08/2017 - 16:52

    Thank you again. I'm interested to see what I learn from this process!

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  Spending2Much on 15/08/2017 - 10:12

  Following this withh interest. Please keep updated.

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  Amanda3724 on 15/08/2017 - 11:12

  +1

  Good luck with it! I went through the civil court process in WA too against a tradie who ripped me off. I won but I had to engage the services of the sheriff to recover the court award. The sheriff was fantastic and they have sweeping powers to recover debt, so it might seem like a hard slog but stick with it. It's not just about the debt as you'll know; it's about making them think twice before they rip someone else off who won't/can't stand up to them.

  • 

    [Deactivated] on 15/08/2017 - 11:19

    How much did the process cost you?

    Also, I'm glad you recovered your monies!

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  Amanda3724 on 16/08/2017 - 09:01

  I can't remember the actual cost, but it was all added to the court award so in the end it didn't cost me anything. That's assuming you win, of course. I think perhaps $120 rings a bell, but there are other fees too, such as the sheriff's fees. The documentation isn't easy, so I'd recommend reading all the leaflets they provide at the court but the whole process is designed to be done without lawyers so the magistrate/registrar tends to be quite patient. Happy to answer any other questions.