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.
Debt collectors in Queensland appear to be confused about a recent communication forwarded to Magistrates' Court Registries regarding the legality of the filing of documents according to a recent article in the Agent.
It is alleged that a recent communique was sent to the Registries reminding them that those licensed under the Debt Collectors (Field Agents and Collection Agents) Act 2014 are ineligible in which to be signing and appearing for a Party (the Plaintiff) when the Party or their Solicitor should be acting. The communique allegedly cited Regulation 19 of the Uniform Civil Procedure Rules 1999 and -
19 Originating Process Must Be Signed
(1) The plaintiff or applicant, or the person's solicitor, must sign the originating process
(2) This rule applies subject to rule 975A(1)
The confusion apparently stems from the Magistrates' Court historically accepting an originating process (Statement of Claim) from debt collectors who claim that the Court refusing to accept documents is contrary to the Rules. Regulation 31 of the Uniform Civil Procedure Rules 1999 states:
31 Applications in a Proceeding
(1) A person making an application in a proceeding, or the person’s solicitor, must sign the application and file it.
(2) The application must be in the approved form.
(3) The application must name as respondent any party whose interests may be affected by the granting of the relief sought.
(4) If an application is made by a person who is not a party to the proceedings, the application must have on it the information required under rule 17 to be on an originating process unless the information has already been provided on a document filed in the proceeding.
Debt collectors are arguing that the Act itself does not provide a definition of a person and it would be fair and reasonable to assume that a debt collector acting for the Plaintiff becomes the Applicant on behalf of the Plaintiff.
It has been noted that Registry staff at some Courts have been attempting to assist debt collectors with reports of having the Plaintiff sign the enforcement applications or providing the debt collector with a power of authority to to all things necessary in which to commence the proceedings.
While there does not appears to be a resolution in sight there have been requests for the Queensland Attorney-General and Minister for Justice, the Honourable Yvette D'Ath to intervene.
Requests to Registries of the Magistrates' Court for copies of the communique and / or confirmation of who released the communique have allegedly not been responded to.
Please note that LCollect does not undertake legal proceedings. LCollect instruct and use the law firm Collection Law Partners for files requiring legal proceedings.
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.
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.
All Registries will be closed from Wednesday, 27 December 2017 and will re-open Monday, 8 January 2018.
Australian Capital Territory
All Registries will close from 4.30pm on Friday, 22 December 2017 and will re-open Tuesday, 2 January 2018.
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.
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.
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.
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:
If you require a more accurate quote as to the enforcement costs and options available to collect your debt please contact us.
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.
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.
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).
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.
If you need more information about enforcement of a Garnishee Order please contact us.
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;
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.