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Going to court

Before you arrive

  • Find out the court’s address and check the location on a map.
  • Organise to arrive at court early, ideally half an hour before the hearing.
  • If you are going to the Magistrates Court your matter will be heard by a magistrate.
  • Practise what you will say before the magistrate.
  • Dress neatly. Don’t wear shorts, t-shirts, tracksuits, thongs or a hat while in court.
  • Bring all of your documents and forms including the application, affidavits and attachments (annexures and exhibits).
  • Bring a pen and some notepaper to record anything you might want to remember later or say to the magistrate when the appropriate moment arises.
  • Organise to take a family member or friend to support you. They can come into the courtroom with you.

When you arrive

  • Check in at the counter.
  • Wait for your hearing outside the courtroom.
  • You will be called into the hearing room when the magistrate is ready to start.

When you are called

  • Speak clearly and follow the magistrate’s instructions.
  • Address the magistrate as “Your Honour”.

What happens at the hearing?

  • The magistrate will check to see if all parties are present in court.
  • If the lender or their representative is not there, the magistrate might ask you to show that you sent them the application. If this happens, tell the magistrate you have prepared an Affidavit of service detailing when and how you served the documents to the lender.
  • The magistrate will decide whether there is time to deal with your matter straight away or adjourn (postpone) it to another time. The magistrate can adjourn your case if they think it is necessary for you or the lender to present more evidence.
  • The magistrate may ask if there is any chance you and the lender could reach an agreement about your dispute. If there is a chance, then you will be directed outside to negotiate privately with the lender.
  • If you can’t reach an agreement, the hearing will continue before the magistrate.
  • When the magistrate asks you what material you are relying on (they may also use the term ‘reading’), tell them you are relying on your application and affidavit filed on (give them the date).
  • The magistrate might invite you to make verbal comments in court about the evidence in your affidavit (called ‘submissions’). It may or may not be a good idea to make verbal comments. Speak to your lawyer before the hearing to get legal advice about what is best for your situation.
  • You can also tell the magistrate you have prepared an Order.
  • Make sure what you say to the magistrate is relevant and to the point. Present your case in a business-like manner.
  • The magistrate will then ask the lender if they have filed any evidence in the matter. If they have, you should be given a chance to read the documents they plan to rely on.
  • If you want to clarify anything the lender says, you must ask the magistrate for permission to do so. Even if you disagree with what the lender is saying, do not interrupt. Take notes about anything you disagree with so you can raise these issues when you have permission to do so.
  • After hearing the evidence, the magistrate will make a decision. If you are unhappy with the decision, get legal advice as soon as possible about your right to appeal. Strict time limits apply.

What happens after the hearing?

If the magistrate orders a change to the contract or mortgage, the lender must send you a notice within 30 days of the hearing setting out the new terms of the loan.

Once you have a new payment plan it is important that you make payments exactly as agreed. You must keep your lender informed if you have any further difficulties with the loan, and be aware it would be much harder to renegotiate a loan a second time with the same lender.

It is also more difficult to successfully bring another application for financial hardship before an EDR scheme or court if you haven’t been able to follow a previous agreement.

If you cannot keep making payments on your new payment plan, be aware it is also very difficult to successfully make another financial hardship application before a court.

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