Counterclaim (Form 10A)

Rule 10.02 of the Magistrates' Court General Civil Procedure Rules 2020 (Vic) lets a defendant who has a claim against the plaintiff counterclaim in the proceeding, and the rules then apply to the counterclaim as if the parties' roles were reversed (r 10.02(1), (2)). A counterclaim served on a defendant to the counterclaim must be in Form 10A, or Form 10B if it is to be served outside Australia (rr 10.02(4), (5), 10.04(5), (6)), and must include an email address for service (r 10.02(6)). A defendant may also join another person as a defendant to the counterclaim (r 10.03). The counterclaim is normally heard with the plaintiff's claim (r 10.05).

When you need it

• You have been sued in the Magistrates' Court and you have your own claim against the plaintiff, for example for money the plaintiff owes you arising from the same dealings.
• You have given, or are giving, a notice of defence; the court's guide says a notice of defence must be filed before a counterclaim.
• You want to join another person as a defendant to the counterclaim (r 10.03); the court suggests getting legal advice first.

1. 1

   Fill in the heading

   Use the court number and venue from the complaint, delete the division that does not apply, and name the parties as plaintiff/defendant in counterclaim and defendant/plaintiff in counterclaim. Add your filing details and the counterclaim amount.

2. 2

   Write the statement of counterclaim

   In numbered paragraphs set out all the material facts with particulars, identify any Act provision relied on, state the amount or other relief sought, and say where and when the claim arose.

3. 3

   Motor vehicle claims

   If the counterclaim is for repair costs or total loss of a vehicle after an accident, attach an itemised repair quote or loss assessment, as the form requires.

4. 4

   Complete the notice to the plaintiff

   Insert the venue of the Magistrates' Court registry. The notice tells the plaintiff they have 21 days from service to give notice of defence.

5. 5

   Addresses for service

   Give your address and choose the address for service option that applies (Service and Execution of Process Act, Trans-Tasman Proceedings Act, in person in Victoria and not a post office box, or your lawyer's business address), then an email address for service.

6. 6

   Sign and date

   The defendant or their Australian lawyer signs. The registry adds the court number and date of filing: the form says it is valid only if it bears both.

• Time limit: file and serve the counterclaim no later than 21 days after notice of defence is given, unless the court orders otherwise (r 10.02(3)).
• The court's guide says to file the original and two copies at the court where the complaint was made, in person or by post, with a filing fee - check the current fee schedule.
• Serve a copy with two blank notices of defence (Form 8A) (r 10.04(7) and the court's guide). A person joined who is not already a party must be served personally, within 30 days after the r 10.02(3) time unless the court orders otherwise (r 10.04(2)(b)).
• The person who serves it completes an affidavit of service (Form 6A).
• A counterclaim is a substantive document under the Civil Procedure Act 2010, so file the overarching obligations and proper basis certifications with it if they have not already been filed (ss 41, 42).

• If the counterclaim would embarrass or delay the hearing, the court can order separate hearings or strike it out without stopping you suing separately (r 10.06).
• A counterclaim can continue even if the plaintiff's claim is stayed, discontinued or dismissed (r 10.08).
• If both sides succeed, the court may order payment of the balance (r 10.09).