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Default Notices in the NSW Local Court

Wednesday, August 01, 2012 - Posted by Philip Harvey

Some of the most common defences in the local court are around Section 88 Default Notices.  One of the most common defences is to say that the Section 88 Notice was either not received or was defective. Recently a defence has been used that the Default Notice didn’t have the EDR details and hardship details included (the Form 12).

Many clients do a Default Notice and then attach a Form 12 which cover the EDR and Hardship requirements. As the Form 12 is not in the body of the Notice it has to be proven that it was sent.

In the recent example the Default Notice didn’t have any staple holes and the debtor argued that the Form 12 wasn’t attached and therefore they didn’t have a chance to lodge a dispute with the Ombudsman or apply for hardship.

The clients file note showed a default notice was sent, but didn’t state that the Form 12 was attached.

The magistrate was prepared to set Judgment aside, but fortunately the debtor had no valid defence or argument for hardship. So even though the Default Notice was invalid the debtor didn’t suffer any loss or hardship and in this case the Garnishee was enforced.

Solutions:

1. To have the details of the Form 12 in the body of the Default Notice (such that it the Section 88 Notice and Form 12 are the one document).

2. If the Form 12 is attached to a Default Notice file, a note should read that a default notice was sent with a Form 12 attached. The staff member doing this will have to be able to swear an affidavit that this was done to be submitted to court.


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