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Using the Legal System to collect debts in Western Australia


Below is an overview of using the Legal system in Western Australia to collect debts. The information provided in this overview does not constitute legal advice, but rather is provided to Creditors as an overview of the steps that could be taken to obtain payments in collection of a debt. Each debt collection case is different. It is our debt collection practice to use the legal system through our associated Law Firm, Collection Law Partners, where it is likely that payments will result. Some Creditors use the legal system and Bankruptcy action out of principle (knowing they will not receive any economic benefit) or to establish a reputation with debtors so they are taken seriously and placed first in the queue of creditors that will receive payments when the debtor elects to make payments.

Included in the overview is a workflow to assist in the understanding of the process. The workflow is located after the article. You may also like to download a copy of this workflow for you own records. A link for the download is at the end of this article.

The court scale costs (including court filing fee costs, allowed process server costs and scale solicitor costs)  advised below are current as at July 2017, and are subject to change. There are other fees and charges for some actions that have no permitted court scale rate which cannot be added to the debt, but still payable. The court scale costs are for undefended matters only.

 

Claim / Statement of Claim

  • After expiry of Default Notice the initiating action in the Magistrates Court is a Complaint.

  • The claim must be served personally

  • You can apply for Judgment 14 days after service

  • The magistrates court has jurisdiction up to $75,000.

  • Court scale costs are detailed below for an undefended matter. The actual cost will be higher due to the cost of personal service. Note that solicitors costs for debts less than $10,000 cannot be added to the debt, and are not included in any of the below tables in the $0 - $10,000 range. This applies to the Statement of Claim and Judgment (Solicitor costs are approximately $400 and the extra cost of personal service are approximately $70, though higher for remote areas).

Debt Amount Court Scale Costs
$0.01 to $10,000 $327.20
$10,000.01 to $50,000 $1,123.20
$50,000.01 to $75,000 $1,498.20

Judgment

  • This action formally registers the debt with the court and allows further collection action.

  • Judgment stands for 12 years. However, creditors should be aware of the Inactive Case List (Part 16A s95A to 95F of the Magistrates Court (Civil Proceedings) Rules 2005), whereby a matter where no procedural steps have been taken for 12 months is placed on the inactive case list, and if on the inactive case list for 6 continuous months is dismissed. You can read more about this on our blog.

  • Court scale costs are detailed below (again, solicitors costs are not permitted to be added to the debt where the debt value is less than $10,000. Solicitors costs will be the same as the cost below);

Debt Amount Court Scale Costs
$10,000.01 to $75,000 $154.00

 

Enforcement Options


1. Property (Seizure and Sale) Order

  • Sheriff or Bailiff attends property of debtor to demand payment and tag any assets of value.

  • If payment cannot be made goods to the value of the debt are seized and sold.

  • The order is valid for 12 months.

  • A Judgment Debtors saleable interest in any real estate must not be sold unless the bailiff is satisfied that the sale of personal property will not satisfy the debt.

  • Court scale costs are detailed below and do not include the costs involved for selling any repossessed goods;
 Debt Value
Court Scale Costs
$0.01 to $10,000 $537.00
$10,000.01 to $75,000 $637.00

 

2. Debt Appropriation Order

  • This is a court order requiring a third party to pay part or all of the judgment debt to the creditor instead of the debtor. (Similar to a Garnishee Order for debts in NSW).

  • You must have knowledge that there are funds available to be appropriated and swear an affidavit verifying this.

  • The court will consider the application without a hearing.

  • The third party may be served by post.

  • The order takes effect as soon as it is served on the third party, and is payable within 7 days.

  • Court Scale costs are detailed below;

    Debt Value Court Scale Costs
    $0.01 to $10,000 $399.50
    $10,000.01 to $75,000 $493.00


3. Bankruptcy

  • Judgment must be obtained then a bankruptcy notice served.

  • Once Bankruptcy notice has expired then Bankruptcy can be applied.

  • Once bankruptcy obtained all debts owed by the debtor are captured under the Bankruptcy.

  • The AFSA filing fee for a bankruptcy notice is $470.

  • The Creditors Petition / Sequestration Order and appointment of a Trustee cost is approximately $10,000 - $12,000.
 

4. Means Inquiry

  • This is used where you are unsure of the debtors financial position, or you would like to obtain an earnings appropriation order, instalment order or time for payment order.

  • The debtor is directed to attend Court and under oath provide details of their current financial position.

  • The court will determine the judgment debtor's means to pay the judgment debt .

  • The debtor must be served personally at least 5 days before the hearing date.

  • The Creditor must be represented at the hearing. Should the Judgment Debtor not attend a warrant may be issued to arrest the debtor and bring them before the court to complete the hearing.

  • Court scale costs are detailed below. As solicitor attendance is required, the actual cost will be higher. (The attendance is charged at solicitors hourly rates).

Debt Amount Court Scale Costs
$0.01 to $10,000 $438.50
$10,00.01 to $75,000
$538.50


5. Time for Payment Order / Instalment Order

  • A Means Inquiry must be conducted before making either of these applications.

  • A Time for Payment Order is a Court Order that orders the debtor to pay the Judgment Debt immediately or before a set date.

  • An Instalment Order is a Court Crder that orders the debtor to pay the Judgment Debt by instalments in amounts and by times set by the court.

  • Cost for actual service will be higher than the court scale allowed.

  • Court Scale costs are detailed below;
Debt Value Court Scale Costs
$0.01 to $10,000 $399.50
$10,000.01 to $75,000 $493.00
 


6. Earnings Appropriation Order

  • A time for payment order or instalment order must have been made and breached (missed 2 payments under an Instalment Order) before you can make this application.

  • This is an order that compels the debtors employer to make payments towards the judgment creditor in order to satisfy the Judgment Debt.

  • The Court determines the amount of the Order.

  • Court Scale costs are detailed below;
Debt Value Court Scale Costs
$0.01 to $10,000 $399.50
$10,000.01 to $75,000 $493.00

 

Workflow of the WA Process

You can download this workflow here -

Workflow of the WA Legal Process for Debt Collection Workflow of the WA Legal Process for Debt Collection (54 KB)

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