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Using the Legal System to Collect Debts in South Australia


Below is an overview of using the Legal system in South 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 2018, and are a guide only. In South Australia, a percentage fee based on the size of the debt is applicable. 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 Statement of Claim (also referred to as a SoC).

  • Personal service of the Claim is required.

  • In South Australia, the allowable solicitors costs are calculated as a percentage of the debt value. In the below table a range of costs has been supplied as a guide. If you require a closer estimation of your costs, you should contact us.

Debt Amount Court Scale Costs
$0.01 to $24,999.99 $491.25 - $730.00
$25,000 to $100,000
$1,344 - $3,594

 

Judgment

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

  • Judgment stands for 15 years. 

  • Likely costs are detailed below, nothing that the solicitors costs may not be recoverable at this stage in the collection cycle. The actual cost of the action will differ, and the below should only be used as a guide.

Debt Amount Cost Estimation
$0.01 to $24,999.99 $300.00
$25,000 to $100,0000 $300.00

 

Once Judgment is granted there are 4 choices of enforcement proceedings;

 

1. Oral Examination

  • This is used where you are unaware of the debtors assets or employer.

  • Documents are personally served on the debtor to attend court.

  • A hearing is conducted by the Magistrate and the debtor must provide details of income expenses and assets.

  • You can use the information obtained in this action to determine your next action.

  • If the debtor does not attend then you can apply for an Arrest Warrant.

  • Court Scale Costs are detailed below. There will be additional costs for service and attendance of the Exam (approximately $200), and solicitors costs may exceed the court allowable amount.

Debt Amount Court Scale Costs
$0.01 to $24,999.99 $181.50
$25,000 to $100,000
$241.50

 

2. Garnishee / Attachment of Earnings

  • You must know the debtors employment details.

  • Consent must be received from the debtor personally (verbally or in writing).

  • Documents must be served on the debtor and employer.

  • Registrar will look at debtors income and expenditure prior to making ruling as to amount.

  • This is a lengthy process involving a significant amount solicitor time. Likely costs are detailed below, but will vary depending on debtors actions, service attempts, etc.

Debt Amount Costs
$0.01 to $100,000 $1,600 - $2,000

3. Warrant of Sale

  • The 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.

  • Debtor can lodge an instalment order to stay the action.

  • Should there be assets to seize, additional hourly costs charged by the Bailiff (approx $50 per hour).

Debt Amount Costs
$0.01 to $24,999.99 $230.00
$25,000 to $100,000
$430.00

 

4. Bankruptcy

  • For a more detailed overview of Bankruptcy, please visit the Bankruptcy overview section of our website.

  • 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.

 

Workflow of the legal system in South Australia to Collect debts

Download of the workflow

 

Using the Legal System in South Australia to Collect Debts Using the Legal System in South Australia to Collect Debts (54 KB)


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