At LCollect we believe that knowledge is power. Every month our debt collection blog gives you practical tips, stories and news from around Australia and the world.
There has been some anxious times recently for body corporates who have been eagerly awaiting the decision in the Queensland Court of Appeal in Body Corporate for Mount Saint John Industrial Park Community Title Scheme 18632 v Superior Stairs & Joinery Pty Ltd  QCA 173.
In the District Court the Defendant, Superior Stairs & Joinery Pty Ltd (STJ) argued that the action by the Plaintiff, Body Corporate for Mount Saint John Industrial Park Community Title Scheme 18632 (Body Corporate), should be struck out after action was taken for the recovery of unpaid levies, recovery costs and penalty sums on the basis that the proceedings were commenced outside of the limitation period. STJ arguies that the limitation period for bringing body corporate debt recovery action was contained in Section 145 of the Body Corporate and Community Management (Standard Module) Regulation 2008 (QLD) -
Part 4 Payment and Enforcement of Body Corporate Debts
s145 Payment and Recoery of Body Corporate Debts
(1) If a contribution or contribution instalment is not paid by the date for payment, the body corporate may recover each of the following amounts as a debt -
(a): the amount of the contribution or instalment;
(b) any penalty for not paying the contribution or instalment;
(c) any costs (recovery costs) reasonably incurred by the body corporate in recovering the amount.
(2) If the amount of a contribution or contribution instalment has been outstanding for 2 years, the body corporate must, within 2 months from the end of the 2-year period, start proceedings to recover the amount.
STJ successfully argued in the District Court that the time limit for recovery of a debt by the body corporate was 2 years and 2 months pursuant to s145(2) however the Body Corporate submitted at the time that the time limit was 6 years from the date the levy became due and payable pursuant to Section 10 of the Limitations of Actions Act 1974 (QLD).
The District Court agreed with STJ at the time however on appeal, the Court of Appeal, overturned the District Courts decision. In the decision Justice McMurdo, Justice Mullins and Justice Bond stated that the issue raised on appeal was not that of conflicting limitation periods but whether or not s145 prescribes a limitation period. The Justices concluded that s145 is to compel a body corporate to commence proceedings but cannot be interpreted as a limitation period and therefore s10 of the Limitiation of Actions Act is the governing legislation (ie 6 years from the date the contribution becomes outstanding).
The Labor party in Victoria has planned a crackdown on debt collection in Victoria if re-elected at the November State election.
news.com.au and radio 3AW 693 are reporting that organised crime groups will be the focus of a planned State Government crackdown on the debt collection industry with Police Minister, Lisa Neville, announcing earlier this month an overhaul of the regulations. In a statement to the media she said, "We'll clean up this industry, like we did with scrap metal - to tackle organised crime and crack down on rogue operators."
The Labor Government, if re-elected, would like to establish a dedicated commission and harsher penalties for those involved in unlicensed debt debt collection in Victoria and would work more closely with the police, Consumer Affairs Victoria and industry leaders to clean-up the industry.
Chief Executive of the Australian Collectors and Debt Buyers, Alan Harriers, said in response, "If they are that [sic] then it's up to Fair Trading to stop them as being illegal persons doing debt collection. I am unaware of any prosecutions against people in this regard. If they were actual proper debt buyers, they would hold an Australian credit licence that is issued by ASIC. It's a very highly regulated industry."
In Victoria there is not a legal requirement in which to hold a debt collection licence.
Our Debt Collection News blog and newsletter started back in July 2009 with our first article REVS - Putting Them on and Keeping Them Current.
Since then we've covered a whole range of things from street lights being repossessed, providing support to our local communities by being a supportive employer of the NSWRFS, sharing community awareness articles such as suicide awareness, donating to appeals such as Give Me 5 For Kids and more recently keeping you up-to-date about changes to the EDR Scheme.
Here's some pretty impressive numbers we've collated over the last 9 years:
In our March 2018 edition we reported that Bundaberg Regional Council were auctioning several properties for outstanding rates. It appears that this trend is set to continue with Armidale Regional Council following in their footsteps.
The Armidale Express is reporting that council is set to auction 59 homes after owners have failed to pay their rates. Council is reporting that the 59 properties, which include vacant parcels of land, are valued at $748,300 which is roughly a quarter of the $2.455 million owing as at the end of June 2017. Outstanding rates vary with amounts owing to council between $2,391 to $75,811.
Chief Executive, Chris Rose, said in a statement to the media, "It is unfortunate council has to take this path. However, if council did not act to recoup the outstanding amounts, it would be unfair on ratepayers who pay their rates in full and on time. Property owners are advised to contact council if they are falling behind in paying rates. We can work out an agreeable payment plan or, in some cases, they can apply for hardship rate relief. Plus, rates can also be paid on a weekly, fortnightly or monthly basis via direct debit, rather than waiting until the quarterly bill."
All NSW councils are bound by the NSW Local Government Act that gives councils the power to sell occupied properties where rates have not been paid in more than 5 years and vacant land where the overdue rates exceed the current land valuation provided by the Valuer General.
The properties are set for auction at Armidale Town Hall on Friday, 14 September.
We have again received notification from the Credit and Investments Ombudsman ("COSL") that this practice seems to be ongoing. From their March 2018 edition of CIO News we came across this reminder -
We have recently received a number of complaints against consumer lease providers, where the FSPs have reported their customers to the police. They were reported on the basis that the goods associated with the lease, were stolen as these customers had defaulted on payments.
We would like to remind our FSP members that they have enforcement rights under the National Credit Code. We would consider these as more appropriate when enforcing their rights due to non-payment. We note that this is despite a number of states have broad definitions of stealing and fraud under their criminal codes.
A decision to report goods as stolen, rather than pursue standard collections or enforcement action, does not demonstrate good industry practice.
In our November 2016 edition of Debt Collection News we reported about this very issue in Financial Service Providers Argue Criminal Proceedings Outside Ombudsman Jurisdiction.
As we indicated in our previous article it still remains unclear as to the final outcome of the investigation by COSL however as they noted in their reminder enforcement of the debt should be undertaken via the NCC and not by the police.
Source: CIO News - March 2018
Recently we have again seen an influx of requests by credit repair companies requesting that payment defaults or Judgments be removed from consumer credit files.
Typically these requests are received after a debt has been paid in full or settled with consumers being told by credit repair companies that they can remove a default. Such a request usually involves the credit repair company forwarding a default removal request and a signed privacy consent form with reference to Section 2.23 of the Credit Reporting Code of Conduct. Of interest in receiving these requests is a demand that the request be complied with within 10 business days. This is in fact incorrect in that the credit repair companies are making reference to the repealed Part IIIA of the CRCC:
That aside the formal stance from Equifax regarding the removal of defaults can be found on their page Can I Have Information Removed from My Credit File?
Generally speaking a default will only be removed if:
Disclaimer: The information contained in this article does not constitute legal advice and should not be used as such. You should obtain your own independent legal advice before acting or relying on its content.
Comcare, a statutory authority of the Australian Federal Government as the insurer, regulator and scheme manager of the Work Health and Safety Act 2011 and the Abestos-Related Claims (Management of Commonwealth Liabilities) Act 2005, has allegedly increased their attempts to recoup payments for cases it previously accepted liability for.
Figures released to a Senate committee show an increase in overpayment letters being issued by 77% for the 2014 to 2017 period. Comcare has claimed that there has been no change in approach or policy that has led to the increase of the overpayment letters and claims that it is not clear if the increase in claims has impacted upon the figures. The agency did claim that while there may have been an increase in overpayment letters being issued that a record number of debts are also being waived or written-off.
Manager for Slater & Gordon's Comcare team, Abraham Ghaleb, said, "It's absolutely terrifying for people and it's an abhorrent behaviour for a Commonwealth department. When I'm getting the evidence together [the prospect of an overpayment claim] always has to be in the forefront of my mind, 'is this a potential argument that Comcare will raise?' and 'how do I deal with it?"
Comcare has rejected any suggestion and improper behaviour and said in a statement, "Case reviews and debt recovery have had little impact on the Comcare scheme's financial position. The scheme achieved full funding (100 per cent ratio of assets to liabilities) in 2016-17 for the first time in seven years. The biggest drivers of this recovery were sustained reductions in new claims, a strong focus on early intervention and better return to work outcomes."
A recent study from finder.com.au has revealed that almost 25% of Australians believe that ambulance services are free.
While Queenslanders and Tasmanians enjoy a free service other States come at a cost and may not ben covered by health insurance. The cost varies across each State and Territory with some costs determined by location and whether or not the incident is deemed an emergency or not with most subsidised by State Governments.
Data from Revenue NSW shows that Sydneysiders alone owe more than $20 million for emergency callouts between July 2015 and January 2018 with a significant number of debts now being referred to debt collectors to follow-up for immediate payment. In NSW patients are charged a callout fee of $372 plus an additional charge of $3.35 per kilometre with the State Government subsidising 49% of the overall cost. Those with concession cards and pensions are excluded from the charge along with those who hold "ambulance only" private health insurance.
State Revenue Office in Victoria could not be reached for comment however in October 2016, Ambulance Victoria was allegedly pursuing $40 million in unpaid fees for patients transported by road and air ambulance with an emergency ambulance trip costing $1,174 in metropolitan areas and $1,732 in rural Victoria. Air ambulance cost up to $4,898 with this figure increasing to $10,475 for a helicopter.
In direct comparison those in Western Australia are charged $932 and South Australians $934 for emergency callout fees. Those in the ACT pay $918 for transport and treatment and in the Northern Territory the cost is based on a callout and kilometre fee with the average trip costing between $745 to $1,000. Those in the Northern Territory can elect to pay $85 per annum to receive unlimited free emergency ambulance transport.
Bessie Hassan, head of PR for finder.com.au, said, "Around one in four Australians believe ambulance services are covered by Medicare, so it could come as a surprise to many when they receive a bill in the mail a few weeks later. Ambulance cover can be available under hospital, extras or as a stand-alone health insurance policy and may include protection for emergency only or all ambulance use so it’s worth double-checking the fine print. There are a few options available for those who are unable to pay their ambulance fees upfront, so it’s worth doing your research if a bill comes in. Patients should bear in mind that in non-emergencies it could be cheaper and faster to simply drive or catch a taxi to the hospital.”
Source: News.com.au - February 2018
Consumer Affairs Victoria has recently re-released an article which outlines the debt collection practices that are banned in Victoria.
The ban covers the following:
Last month in our blog we looked at Recording Payment Defaults with a Credit Reporting Body ("CRB").
This month we are going to take a look at a Notice that isn't regularly used but can be a very effective debt collection tool where an account, under the National Credit Protection Act 2009 (Cth), is continually in arrears and the customer proposes a repayment arrangement.
s95 EFFECT OF NEGOTIATION POSTPONEMENT(1) A Default Notice under Section 88 or a demand for payment under Section 90 is taken, for the purposes of this Code, not to have been given or made if a postponement is negotiated with the Credit Provider and the Debtor, Mortgagor or Guarantor complies with the conditions of postponement.
In reviewing this particular section of the Code the customer may propose to postpone action by entering into a repayment arrangement (s94 NCC). The application, which may be verbally or in writing, must be proposed by the customer prior to the Default Notice expiring.
As a Credit Provider you may accept a proposal to postpone enforcement proceedings and confirm this with the issue of a Notice of Postponement under s95 of the NCC. For compliance purposes the s95 Notice must outline what is required of the customer, usually a payment schedule indicating the amounts due to be paid and when but can also be non-monetary (providing evidence of registration, insurance, etc for secured goods) and the consequences of non-compliance if the s95 Notice is not complied with as stipulated in subsection (3).
It should be noted that the issue of the s95 does not stop enforcement action against other parties to the Contract. In other words each party to the Contract whether they are a Debtor, Mortgagor or Guarantor must negotiate their own postponement of proceedings.
If you would like to know more or if you would like a Notice of Postponement issued please contact us to discuss your requirements.
This article does not constitute legal advice and should not be used as such. You should obtain your own independent legal advice before acting or relying on the content of this article.