Defending the claim

If you disagree with the claim, you can file a defence form with the court. 

You must do thi​s within 28 days of being served with the statement of claim otherwise the plaintiff can get judgment against you.

A defence confirms that you deny some or all of the claim and the reasons why. These reasons are called the grounds of your defence. 

If you want to file a defence, see Step by step guide - Filing a defence. 

If you are not sure whether you should file a defence you should get legal advice. 

If you think that the plaintiff owes you money or has your goods, or that another person (called a third party) owes the plaintiff the money, you may be able to make a claim against them. This is called a cross-claim.

You must file a cross-claim within 28 days from the date you received the statement of claim.​ 

If you only file a cross-claim with​out also filing a defence, the plaintiff can get a judgment against you. If you want to defend the plaintiff's claim, you must file a defence at the same time as the cross-claim. 

It may not always be necessary to file a cross-claim when the plaintiff owes you money. If the court decides that the plaintiff owes you money, the amount the plaintiff owes will reduce any money that the court decides you owe to the plaintiff. This is called a 'set off'. However, without a cross claim the court can’t order the plaintiff to pay you any money. 

Filing a cross-claim form can make a case more complicated and lead to higher costs. Before filing a cross-claim form, you should get legal advice.​

Sometimes after filing your defence form, you may need to change it. This is called 'amending' your defence.

If you want to change your defence, you should ask the registrar for leave (permission) at the pre-trial review. For more information, see Pre-trial review.

You may want to amend your defence to: 

• ​​correct an error
  
• clarify, add or remove grounds (reasons) for the defence
  
• correct the name of a party
  
• add or remove parties.
  

You can amend your defence only if:

• the court gives you permission (called leave), or
  
• the plaintiff serves you with an amended statement of claim. 
  

The plaintiff is allowed to amend their statement of claim once without the court's permission within 28 days from when it was filed.  You will then be served with an amended statement of claim form and you will have 14 days to file an amended defence. You will not need the court's permission to file this form. 

If the plaintiff asks the court for permission to amend their statement of claim you should ask for permission to amend your defence. If the plaintiff brings up something new in their statement of claim, you may need to respond to it.

If you want to ask for leave to amend your defence, you should get legal advice. 

An amended defence needs to be renamed and should be dated, for example 'Amended defence - amended on 21 March 20xx'.

You need to state why you are amending the defence:

• if the defence is amended because of an order by the court it needs to state this, for example, 'Amended defence - amended pursuant to order of Registrar X made on 21 March 20xx'
  
• if the defence is being amended within 14 days of the plaintiff's amended statement of claim which was filed within 28 days of filing the original, it needs to state this, for example, 'Amended defence-amended in response to the plaintiff's amended statement of claim filed on 21 July 20XX'.
  

Amendments should be noted by striking through the wrong information. Any changes or new additions should be underlined and/or in bold text. 

The amended defence needs to be filed with the court, and a stamped copy served on any other parties. It is important to file the amended defence by the date ordered by the court. 

Sample:  Sample amended defence​.

Everything in a case will usually happen at the court where the statement of claim was filed. Sometimes a plaintiff will file the statement of claim in a local court that is far away from your home, in a different part of NS​W. If this happens, you can ask the court to move the case to a court closer to your home. This is usually called an application to change the venue. 

Your case cannot be moved to another court if the other court is less than 100km from the court where the statement of claim was filed, unless there are exceptional circumstances. ​

For more information see Step by step guide - Moving the case to a different court.