VIC Letter of Demand - Housemate Not Paying Bills?

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Aussie9000

Well-Known Member
23 August 2018
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I am a co-tenant with another person in Victoria. When we moved in we agreed that rent and all bills would be split in half. The co-tenant is refusing to pay the bills + rent. The rent is not technically due yet but I had to pay the co tenants half of the bills as the co tenant refused to pay them.

I have done a fair bit of reading online so I am looking to take the co tenant to the Magistrates Court to get my money back (plus the rent if the co tenant decides to not pay that also). I'd rather avoid this but it seems my co tenant has zero intention on paying the bills and I've attempted to resolve this in a civil manner via conversation and text message.

I understand that I need to fill out Form 5A Complaint and that I can add the court costs in as well (assuming I win) but is there anything else I need to do before filling out Form 5A? Various articles on the internet mention a letter of demand but the Magistrates court doesn't mention this.

My questions are;

Should I send a letter of demand? How do I construct this?

How much would it actually cost me to claim about 300 in bills and 900 in rent? https://www.magistratescourt.vic.gov.au/sites/default/files/Scale of Costs - 1 January 2018.pdf

The scales of cost seems to be somewhat completed.

Thanks in advance
 
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Rob Legat - SBPL

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Letter of demand? Absolutely. This is an important step and one the courts will look for. It alerts the other party, and clarifies what they are expected to do. You can easily search the internet for template letters of demand, but the basis rules to follow are:
1. Identify yourself - this doesn't need to be, "My name is....". But rather, put your name and address on the letter, and sign it;
2. Identify who the demand is addressed to;
3. Establish the basis for the demand (e.g. You and I are the tenants under a lease agreement dated [A] for the house at );
4. State the specifics of the demand (e.g. I require you to reimburse me for your half of the rental due under the lease for the period [C] to [D], in the amount of $[E], which you have failed to pay by the due date of [F]). List out all the amounts required, and their specifics. You can do it in list format, but make sure to clearly state the amount, what it is for and when it should have been paid;
5. Make your demand (e.g. I require you to pay me the full amount of $[G] within [reasonable time] of the date of this letter). I would suggest a reasonable time period is likely to be not less than 14 days;
6. Ensure the demand letter is dated, you keep a copy, and note the time and date it was delivered to the other person;
7. I'd also suggest stating that a failure to pay the amount demanded by the due date, or a failure to pay subsequent amounts due under the lease as and when they are due, may lead to legal proceedings being commenced without further correspondence.

Cost to file? Looking at column B on the ready reckoner: $307.80 filing fee and $71.00 service fee.

If you're self-representing, you cannot claim legal costs.

You'll need to file the Form 5A Complaint (including a statement of claim), Form 4A Overarching Obligations Certification, and Form 4B Proper Basis Certification, to get the matter rolling.
 
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Aussie9000

Well-Known Member
23 August 2018
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3
74
Hi Rob thanks for this reply. It is most helpful. I have a few follow up questions but I will most certainly take your advice and write up this letter of demand.

You say if I'm self representing that I can't claim legal costs? Does this mean I can't claim the filing fee and the service fee even if I win? This would obviously still leave me out of pocket at the end of it.

If I pay a lawyer to represent me in these claims can I then claim the filing fee, service fee and all of the lawyer's fees from the co tenant if I win?

Must I attach evidence of each bill to the demand letter?

Must the demand letter be served in person? The co tenant left last night leaving their keys (technically they are still on the lease and have given no official or written departure notice) so it may not be possible to easily serve this in person (although I do know where they work). Can a demand letter be sent via email?

In regards to the rent, it is next due on the 13th Sept (just under 3 weeks), as the co-tenant has given no official notice of moving out and sent a screenshot of a bank transfer for the rent + bills last week and then cancelled it, is a court likely to rule in my favor if I try and claim this? I will not be able to afford rent on the 13th without borrowing the money as I was relying on the money from that bank transfer which was cancelled. I accept that I can't claim their rent half for the remainder of the lease and I tend to 'mitigate' the situation by taking over the lease on my own from the 13th October but given the current situation I can't afford rent purely on my own for the 13th Sept (remember the co tenant signaled intent to stay by pretending to pay the rent and bills) is it acceptable to claim this and do you think a judge will rule in my favor?

Lastly, the electricity bill for the last 3 months isn't in yet (it will be in 10 days) and obviously the rent isn't quite due yet so should I send a letter of demand now asking for the bills that are already in + funds to replace my items / property that the co tenant broke / destroyed and then send another letter after electricity and rent becomes over due or should I wait and send one letter on or after the 13th Sept when it is all over due. If I sent two separate demand letters, should i mention that rent is soon due by the 13th and will have to be paid soon in the first letter?

Sorry for the numerous questions and lengthy reply but I really want to get this sorted, get what I'm owed and move peacefully with my life. I really appreciate the time you have taken so far here and on my previous thread.

Thanks.
 
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Rob Legat - SBPL

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- I can’t give an indication on your odds of being successful, especially without a full consideration of all the relevant facts. However, on the face of it actions such as yours are fairly straightforward and, as you’ll be seeking reimbursement rather than ‘profit’, relatively easy to prove.

- Legal costs – what a lawyer would charge – aren’t recoverable by self-represented litigants. The filing fee is generally recoverable, and the service fee if served by the bailiff (check with the court on that). This is assuming you are successful, put these in as part of your claim, and obtain them as part of any order(s).

- If you pay a lawyer, odds are you won’t get all their charges covered. Think of it like non-bulk billed Medicare – there’s what you pay the doctor, and what the government will allow.

- You don’t need to attach evidence of each bill to the demand letter, but you do need to sufficiently identify what you are claiming the money for. Attaching copies wouldn’t hurt, but it’s not necessary.

- Demand letters can be given in a variety of ways, generally, so long as it is a method you would reasonably expect would reach them. There’s no point leaving a demand letter in their room if they’ve moved out, for instance. Email is gaining more acceptance as a valid method, especially if you have regularly conversed on lease matters via email.

- Suing on an amount which is not yet due and payable is tricky. You’d be better including a demand for payment of these amounts when they are due in your letter of demand, and actioning the whole thing afterwards. If the electricity bill is coming in 10 days, you may want to wait for it so you have a known amount to claim.
 
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Aussie9000

Well-Known Member
23 August 2018
18
3
74
Hi again Rob,

Thanks for this info. I'll wait until it is all due before issuing a letter of demand but I'll just drop a casual email today asking for payment for the bills and that rent is due soon etc. I'll write the demand letter now though so it is ready to go when I need it! :)

I'm guessing that if I can't claim all the lawyer fees that I am better off representing myself given that paying a lawyer could potentially cost more than what I win?

Thanks again!
 
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Aussie9000

Well-Known Member
23 August 2018
18
3
74
Hi Rob (or anyone else who might read this),

The demand letter I sent had a dead line of cob today and so far I am yet to receive any funds.

I'm now looking at commencing civil proceedings unless there is some other step available that I could try first?

However looking at the forms etc. for the magistrates court it seems that I need the address of the defendant. I have no idea where she lives now, I only know where she works. What can I do about this? Is there a way around this?

Thanks!
 

Rob Legat - SBPL

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You can try other steps - the letter of demand is the 'necessary' one to commence court action. It's a matter of what you might think will work.

As to the address, check with the court if you're permitted to use their work address. If not, you might have to find a way to track them down. Or, as long as you can find them at work and you haven't been advised of a forwarding address, use the address of the co-tenancy.
 

Rod

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I agree, use the address of the co-tenancy in the first instance if that is the last known address. You then get a process server to serve the court papers on her while she leaving/arriving at work, or subpoena the employer for her home address.
 

Aussie9000

Well-Known Member
23 August 2018
18
3
74
Thanks Rob and Rod for the responses. I'll email the court just to be sure. Am I able to add the cost of a process server into my court claim or is that something I will have to be out of pocket on?

Also I just received new utility bills and she was actually still at tenant during part of the period, can I add her share to the court claim or should I stick to the amount in the demand letter?

Thanks in advance,
 

Rod

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You add costs as a separate item and hope the courts gives you costs.

I'd add in an amount for the new bills, but make sure it is its own line item(s) and clearly identified.