Many clients require assistance in recovering outstanding debts they are owed.
This article is based on the debt collection process in the Magistrates Court where a value of a debt does not exceed $75,000. If a debt is over this amount a similar process would be followed in the higher Courts including the District Court and Supreme Court.
LETTER OF DEMAND
We recommend starting the process with a letter of demand allowing the Debtor 7 days to pay the amount owed. If no payment or response is received from the Debtor within 7 days, the client may issue legal proceedings.
GENERAL PROCEDURE CLAIM
A General Procedure Claim (“Claim”) can be issued in the Magistrates Court. It is important to note that if a claim is under $10,000 legal costs cannot be claimed generally, except for the Court filing fees.
The Claim must then be formally served on the Debtor.
WHEN A CLAIM HAS BEEN SERVED
Once the Debtor has been served with a Claim they have 14 days from the date of service in which to respond to the Claim. The Debtor is allowed 21 days if service has been affected within another state or territory within Australia.
The Debtor has a range of options when responding to the Claim including:
- Pay the Claim in full/Admit the Claim;
If the Debtor chooses to pay the Claim in full, payment can be made direct to the client or to your lawyer.
- Partly admit the Claim;
As the Judgment Creditor (client) you can choose to either accept the part of the claim admitted by the Debtor or reject it. If the offer is rejected the matter will move to a Pre-Trial Conference.
- Disputes the amount claimed for an unliquidated amount;The matter will move to a Pre-Trial Conference and be listed for Assessment of Damages before the Court.
- Defend the Claim;
The matter will then move to a Pre-Trial Conference but if the Defence has been filed purely for delay or there is no basis to defend, it is possible to apply for early judgment on the basis of there being no valid Defence.
- Counterclaim; or
- No response to the Claim.
If the Debtor fails to respond to the Claim, you can apply for default judgment to be given after the period of time allowed to the Debtor to respond to your claim has expired. This judgment can then be enforced as a means of recovering your debt.
A Pre-Trial Conference is a compulsory meeting between the parties before a Registrar where the parties can explore settlement.
A Pre-Trial Conference is useful as it often prevents the need for the parties to go to a trial.
If a settlement is not reached at the Pre-Trial Conference, the parties usually attend a listing conference as ordered by the Registrar.
The purpose of a Listing Conference is to list the case for trial, which is a full hearing of the case.
ENFORCING A JUDGMENT
As the Judgment Creditor, there are several ways you can enforce a judgment to recover monies owed under a judgment including:
- Means Inquiry;A Means Inquiry can be held to determine if the Debtor has the means to pay the judgment debt. If the Court finds the Debtor has the means to pay, the Judgment Creditor can apply for a variety of orders for the Debtor to pay the debt such as an instalment order. Other orders include a time for payment order and an earnings appropriation order.
- Debt Appropriation Order;
A type of order which requires a third party that owes money to the Debtor to pay that money directly to the Judgment Creditor.
- Property (seizure & sale) Order;
A type of order authorising the Sheriff or Bailiff to seize and sell the Debtor’s real or personal property to satisfy the judgment debt.
As long as the Debtor has sufficient finances or property which can be used to satisfy the debt, usually one of these methods will result in the recovery of monies owed to you.