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Debt Collection News


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.

Changes to Garnishee Orders in NSW

Monday, July 30, 2018 - Posted by Michael McCulloch

There has been an amendment to the requirements for issuing Garnishee Orders for Ddebts. If you are using this enforcement action, you must now state the grounds relied on in support of identifying a debt owed by the Garnishee to the Judgment Debtor in the form of an Affidavit.

UCPR 39.35 now states:

(1) Unless the court orders otherwise, an applicant for a garnishee order must file an affidavit in support of the application, being an affidavit sworn not more than 14 days before the date of filing.
(2) The affidavit in support:
(a) must identify the garnishee, and any debts that are, or are reasonably likely to be, owed by the garnishee to the judgment debtor, and
(a1) must state the grounds relied on in support of identifying a debt for the purposes of paragraph (a), and
(b) must state the amount payable under the judgment, together with any costs and interest payable in relation to the judgment, as at the date of swearing of the affidavit.

For advice as to what this legislative change may mean to you and future applications for Garnishee Orders we recommend that you contact Collection Law Partners or seek your own independent advice from a qualified legal practitioner.


Defendant Defeats Plaintiff in Preferential Payment Claim

Thursday, June 28, 2018 - Posted by Michael McCulloch

In the matter of Heavy Plant Leasing Pty Ltd (In Liquidation) (ACN 151 786 677) [2018] NSWSC 707 (8 February 2018), a Creditor had been applying pressure to obtain payment which was not forthcoming despite several months of requests for payment.

Once the company had been placed in liquidation the liquidator filed proceedings in the Supreme Court, as the Plaintiff (HPL) , against Ms Christine Mancer who trades as Bildavoid Concrete Voidforming Systems (Bildavoid), as the Defendant, claiming to recover $152,609.79 made by HPL to Bildavoid in February 2013. The application was made under the s588FF of the Corporations Act to recover those funds as an unfair preference, insolvent transaction and voidable transaction. The most common way to defend a liquidators claim again unfair preference is to rely on s588FG(2) of the Corporations Act, commonly referred to as "the good faith defence". The basis of the defence is that the Creditor argues that they received monies in good faith and they did not know, or ought not to have known, that the company was insolvent.


In relation to Bildavoid's pressure in which to obtain payment, the Court said, "These are steps that are taken just as much by an unpaid creditor of a solvent debtor as they are by an unpaid creditor of an insolvent debtor. The fact that a creditor applies pressure of that order to secure payment does not, to my mind, illustrate that the creditor fears or apprehends that the debtor is insolvent. The degree of pressure exerted by a creditor does not speak of a suspicion of insolvency, because a creditor is as likely to exert pressure on a recalcitrant solvent debtor as on an insolvent one."

It is important in these matters that if you expect that a company may be insolvent and owes you money that you seek timely advice from a qualified legal practitioner.

Please note that this article is not intended to be legal advice. You should seek your own independent advice from a qualified legal practitioner.

Court Closures 2017-2018 Christmas Period

Saturday, December 30, 2017 - Posted by Michael McCulloch

As is the usual practice this time of year we have received notification that several Courts will not be opened or will have limited staff over the Christmas / New Year period.

As of 18/12 notification has been received from the following States and Territories:

New South Wales
A majority of Registries will be closed from Monday, 25 December 2017 and will re-open Monday, 8 January 2018.

Queensland
All Registries will be closed from Wednesday, 27 December 2017 and will re-open Monday, 8 January 2018.

Victoria
TBA

Australian Capital Territory
All Registries will close from 4.30pm on Friday, 22 December 2017 and will re-open Tuesday, 2 January 2018.

Northern Territory
TBA

South Australia
Magistrates' Court Registries permanently staff during the Christmas / New Year period except for gazetted public holidays.
Supreme and District Court Registries closed from Friday, 22 December 2017 and will re-open on Tuesday, 2 January 2018.

Tasmania
TBA

Western Australia
TBA

Please remember that our office will also be closed over the Christmas and New Year period with us returning for business on Wednesday, 3 January 2018.


Legal Action and Debt Collection

Wednesday, November 29, 2017 - Posted by Michael McCulloch

Did you know that one of the resources that we offer on our website are workflows that outline the legal system to recover debts in Australia?

We frequently update these workflows along with the appropriate costings so you can make informed decisions about the best way in which to recover your debt.

You can find this information here.

Disclaimer: The information provided in these workflows does not constitute legal advice and should not be used as such. You should obtained your own independent legal advice before acting or relying its content.


Court Fee Increases

Sunday, July 30, 2017 - Posted by Michael McCulloch

With the beginning of a new financial year we have received notification from Courts across Australia that there have been some changes in their filing fees.

Click on the appropriate State or Territory below to the fees payable and a  basic workflow of the enforcement options available across each State and Territory:

New South Wales

Queensland

Victoria

Australian Capital Territory

Western Australia

South Australia

Northern Territory

Tasmania

If you require a more accurate quote as to the enforcement costs and options available to collect your debt please contact us.


10 Year Old Debt Finalised by LCollect

Sunday, October 30, 2016 - Posted by Michael McCulloch

An account referred to LCollect in August 2006 has successfully been recovered in full including the payment of a substantial sum of interest.

The account was referred as an unsecured personal loan with our client securing a Default Judgment in 2006 with the Statement of Claim being personally served and nil payments received toward the debt for some time prior to the client commencing proceedings. Following enquiries by the client it was determined that the customer was a clearout and recovery in the short-term was unlikely.

With the debtors whereabouts not known extensive enquiries were undertaken over a number of years. Family members unable to assist stating that the customer was estranged from the family and could not assist in providing any details as to the debtors whereabouts.

In May 2016 further enquiries and searches managed to locate an address and contact number for the debtor who attempted to deny liability of the debt and demanded to be sent details of the debt including how the balance had been calculated. This was sent to the customer by email however subsequent emails to the customer went unanswered. We elected to contact the debtor again where the debtor, on several occasions, became verbally abusive towards staff and continued to make derogatory remarks about the Account Manager.

Further searches were undertaken whereby it was established that the debtor was self-employed, despite the debtor claiming to be in receipt of a Disability Pension. Upon questioning the debtor about these claims the debtor refused to answer questions regarding his involvement with the business and again become verbally abusive and refused to co-operate or substantiate his claims.

In June 2016 an Examination Notice was sent to the customer in an attempt to provide him with the opportunity in which to provide information about his financial position.

Having not received a response to this request, in July 2016  the Account Manager assumed that the debtor would bank with a local financial institution and accordingly issued a Garnishee Order for Debts for the balance of the debt with accrued interest and costs. The Garnishee Order was issued to the financial institution and subsequently the Order was satisfied in full.

In August 2016 the debtor completed and returned the Examination Notice with a copy of a Centrelink Income Statement attached however as the debt had been finalised this information was no longer required.

It has been noted that since the debt was finalised that the debtor has contacted our office several times however we have since ceased all communication with the debtor owing to the fact that the debt has been paid and his continually abusive nature.


Garnishee Orders and the Weekly Compensation Amount

Thursday, August 04, 2016 - Posted by Michael McCulloch

We have had some situations of late where Garnishee Orders for Wages or Salary are being filed however the employer has been unable to comply with the Order as the Judgment Debtor is not earning over the Weekly Compensation amount.

This leads to a situation where deductions are not being made which means that deductions are not being made to reduce your debt.

What is the Weekly Compensation Amount?

s122 of the Civil Procedure Act states:

1. The amounts attached under one or more garnishee orders must not, in total, reduce the net weekly amount of any wage or salary received by the Judgment Debtor from the Garnishee to less than $447.70 as adjusted under Division 6 of Part 3 of the Workers Compensation Act 1987 .
1 (a). The amount of $447.70 referred to in subsection (1) is an 
"adjustable amount" for the purposes of Division 6 of Part 3 of the Workers Compensation Act 1987 .
2. In this section: 
"net weekly amount" , in relation to any wage or salary payable to a Judgment Debtor, means the amount payable each week to the Judgment Debtor after deducting any taxes or other sums that, pursuant to any Act (including any Commonwealth Act), are required to be deducted from any such money.

Effectively this means that the Judgment Debtor can retain an amount of $480.50 (effective from 01/04/2016).

What Are Your Options?

Several options remain to you if the Judgment Debtor is not earning over the Weekly Compensation amount however for the purpose of this article we will only discuss 2 possible solutions.

The most obvious solution is to have the Judgment Debtor apply for an Instalment Order at the Local Court. This offer for payment by the Judgment Debtor removes the protections that they have under s122 of the Act and deductions must be made for the amount that the Instalment Order is made for.

Alternatively you may consider, if you have details of the financial institution that the Judgment Debtor banks with, the issue of a Garnishee Order for Debts. This Order attaches to any / all monies held in the Judgment Debtors bank account with that particular financial institution and is not subject to s122 of the Act.

Need More Information?

If you need more information about enforcement of a Garnishee Order please contact us.


Update to Court Charges for Enforcement of Debts

Friday, July 01, 2016 - Posted by Philip Harvey

Being the beginning of a new Financial year we have seen several Local and Magistrates' Court update their filing fees, Sheriff / Bailiff costs and the allowable Professional Costs.

You can find our latest pricing by visiting the resources page on our website.

Belgium debt collection appeals against judgments do not stop enforcement action

Thursday, January 14, 2016 - Posted by Philip Harvey

In Belgium, in changes recently introduced, appealing against a Judgment debt no longer ceases enforcement action by the Judgment Creditor against the Judgment Debtor. These changes were introduced because of a big backlog in the appeals list resulting that were taking too much of the courts time to address.

Though the Creditor no longer has to cease enforcement action, there are a couple of points to consider;

  • Should the court ultimately find in favour of the debtor, any funds obtained under continued enforcement action will have to be paid back. The debtor could also claim for compensation if they can prove any prejudice as a result of the enforcement.
  • The debtor has an option to stop the enforcement action whilst an appeal is in place by placing the debt owed in an account that is held "in trust" until a final judgment is obtained.

It will be interesting to see how this practice unfolds. Certainly where the debtor has a demonstrated capacity to pay this process should remove frivolous defences.

It will be interesting to note if any unintended consequences arise flowing from this, as there are some real practical benefits from these changes.


NSW Local Court Fee increses August 2015

Tuesday, August 04, 2015 - Posted by Philip Harvey

The NSW Local Court Fee increased its fees on 1 August 2015. The updated costs area available here.

 



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