Using the Legal System to collect debts in Victoria

Below is an overview of using the Legal system in Victoria 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 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.

 

Complaint / Claim / Statement of Claim

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

• The complaint must be served personally. You can apply for Judgment 21 days after service of the complaint.

• The Magistrates' court has jurisdiction up to $100,000.

• Court scale costs are detailed below for an undefended matter. The actual cost will be slightly higher due to the cost of personal service (approximately $100 that is not recoverable).

Debt Amount	Court Scale Costs
$0.01 to $499.99	$543.50
$500 to $1,000	$856.50
$1,000.01 to $4,999.99	$1,016.90
$5,000 to $7,499.99	$1,149.90
$7,500 to $10,000	$1,301.90
$10,000.01 to $19,999.99	$1,462.30
$20,000 to $40,000	$1,684.30
$40,000.01 to $69,999.99	$2,140.40
$70,000 to $100,000.00	$2,409.40

 

Judgment

• This action formally registers the debt with the court and allows further collection action.
• Judgment stands for 15 years.
• Court scale costs are detailed below and are the same regardless of the amount;

Debt Amount	Court Scale Costs
$0.01 to $100,000	$88.40

 

Enforcement Options

1. Warrant to Seize Property 

• Sheriff 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 most commonly used enforcement procedure in Victoria.

• A Warrant to seize and sell real property in Victoria must be renewed every three months until the property is sold. This process is very expensive with Bankruptcy an alternative.

• Court scale costs are detailed below;

Debt Value	Court Scale Costs
$0.01 to $499.99	$268.10
$500.00 to $4,999.99	$326.10
$5,000.00 to $7,499.99	$348.10
$7,500.00 to $19,999.99	$383.10
$20,000.00 to $40,000.00	$426.10
$40,000.00.01 to 69,999.99	$469.10
$70,000 to $100,000.00	$513.10

 2. Attachment of Earnings

• This is a court order requiring the debtor's employer to deduct payments from the debtor's wage and remit them to the the Plaintiff / Creditor (similar to a Garnishee Order in NSW).

• The debtor must be served 14 days prior to the hearing.

• The Plaintiff / Creditor must obtain the debtor's employment details. The details required are the amount the debtor is paid, frequency of the payments and ongoing nature of employment. The court cannot make an order without these.If the debtor's employer will not willingly provide the Plaintiff / Creditor with the debtor's employment information, you may apply to the court to have a Subpoena issued.

• The Plaintiff / Creditor must be represented at the hearing, the debtors attendance is not compulsory.

• The maximum amount of money that can be regularly deducted from the debtor is 20% of their wage. In determining the amount to be deducted, the court will consider all information, which may take into account the debtors financial circumstances. Court scale costs are detailed below.

• Solicitor attendance is required, charged at solicitor hourly rates which is in addition to the court scale costs detailed below.

• From past experience there can be multiple hearings and costs have never been below $1,500 for this action.

Debt Value	Court Scale Costs
$0.01 to $499.99	$481.20
$500.00 to $4999.99	$601.20
$5,000.00 to $7,499.99	$632.20
$7,500.00 to $19,999.99	$744.20
$20,000.00 to $40,000.00	$883.20
$40,000.01 to $69,999.99	$1,020.20
$70,000.00 or over	$1,277.20

 

 

3. Attachment of Debt

• This is a court order compelling a known 3rd party who owes money to the debtor to remit those funds to the Plaintiff / Creditor (similar to a Garnishee Order for Debts in New South Wales).

• An affidavit is required which must state that there is a debt owed to the debtor from the Garnishee. Therefore you must know there are funds available.

• The Garnishee must be served within 7 days.

• The court scale costs are detailed below (actual costs may be higher depending on service costs, approximately $100 that is not recoverable under the Judgment).

Debt Amount	Court Scale Costs
$0.01 to $100,000	$139.40

 

 

4. Oral Examination

• This is used where you are unsure of the debtors financial position.

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

• The Examination is conducted by a Deputy Registrar (agent or solicitor attendance is not required).

• The debtor must be served personally at least 7 days before the hearing date.

• If the debtor fails to attend Court, a Warrant can be issued for the arrest of the debtor in an attempt to compel the debtor to attend a further hearing.Court scale costs are detailed below

Debt Amount	Court Scale Costs
$0.01 to $499.99	$257.70
$500 to $499.99	$337.70
$5,000 to $7,499.99	$366.70
$7,499.99 to $10,000	$382.70
$10,000.01 to $40,000	$431.70
$40,000.01 to $69,999.99	$480.70
$70,000 to $100,000	$527.70

 

5. 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.

 

Workflow of the VIC Process

You can download this workflow here -

Workflow of the Victorian Legal System to collect debts (56 KB)