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.
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.
These areas include, but are not limited to:
We often come across examples where requests are made to our office for the issue of Default Notices. Having reviewed the request we then find that the same debtors have been issued with the same Notices several times over the course of their loan.
Effectively as a Creditor you are teaching the debtor to pay upon receipt of the Default Notice and not as their Contract stipulates. The debtor will often make contact, make arrangements to clear the arrears however fall into arrears again. The next month you will be issuing another Default Notice, the debtor will contact and make an arrangement and the cycle continues. As a Creditor how can you end this cycle and take control of the account?
Under Section 94 of the National Consumer Credit Protection Act 2009 the debtor can propose an application, verbally or in writing, to postpone action under a Section 88 or Section 90 (i.e. they make an arrangement to clear the arrears). The application must be made by the debtor prior to the s88 or s90 Notice expiring.
As the Creditor you must respond to the request made by the debtor within 21 days of the application and advise of the decision, either accepting or declining the application, the name of their relevant EDR scheme and the debtors rights under the scheme.
What happens though if you wish to accept the debtors proposal but don't want to get caught in the cycle of issuing another Default Notice?
As a Creditor you can issue a Section 95 Notice of Postponement under the Act.
This Notice indicates to the debtor the conditions of the postponement and advises the debtor that the Creditor is not required to give any further Default Notice under the NCCP Act. The Notice however only applies to the debtor that originally negotiated the postponement and does not apply to other debtors, mortgagors or guarantors under the Contract unless these parties have consented to the negotiated postponement.
You can find out more about this service by contacting us.
Our thoughts are with those currently being impacted by the bushfire emergency in South Australia.
Those impacted by the fires who have current arrangements are encouraged to contact us to advise of your circumstances so the appropriate moratorium period can be considered.
We also encourage people to get online and visit the South Australian Government website and make a donation to the State Emergency Fund Relief. You can do this online via this link.
It is important to note that this guide to debt collection applies to debt collection agencies, in-house collection departments, Government agencies, Solicitors and others. It is not uncommon for internal collection departments or Solicitors to tell us that this debt collection guide does not apply to them. We refer them to page 1 of the Debt Collection Guideline.
In a previous draft of the guide, debt collection contact hours for telephone contact had been significantly reduced. The new guide to debt collection contact hours are not the same as the draft after many industry concerns were flagged with the regulators.
The updated guide goes through court prosecutions that occurred since the last publication that give good examples of breaches of the Competition and Consumer Act and collection practices that should not be followed.
The emergence of social media is and emerging technologies is also dealt with. We note that it can be difficult to "future proof" such a Guideline at the rate of technological changes we have been seeing, It is important to stick to the core principles underpinning the Guide to Collection when dealing with these new spaces.
For your reference a copy of the guide available for download here.
In this review of the debt recovery process using the legal system in South Australia, there is an updated
version our workflow making the process easier to understand and a
clearer range of costs involved at each stage of the process.
The court scale costs (including court filing fee costs, bailiff costs, allowed process server costs and scale solicitor costs) advised below are current as at August 2013, and are subject to change. The court scale costs are for undefended matters only.
The legal obligations in Victoria are called Overarching Obligations. They are as follows;
When commencing proceedings, you are agreeing to abide by these obligations. If you do not understand these obligations you should contact us.
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.
The consequences of your debtor / the defendant being overseas when initiating court proceedings in NSW is that the courts do not have jurisdiction (except in the Supreme Court). We will put this into context of a scenarios;
You did not know your debtor was overseas when you issued an SLC, and the debtor was on an overseas holiday for 8 weeks.
In this instance, where you have issued an SLC and had it served via post, there is a strong possibility that the you might not even know your debtor is overseas when you commence action (Note - your knowledge of the debtors location does not change the outcome). With no defence entered, you apply for Default Judgment and it is granted. When the debtor returns from overseas he becomes aware of the SLC, make enquires and then also finds out about the Judgment.
The debtor can then apply to the court to have Judgment struck out. He only needs to turn up to court with his Passport as proof that he was not in the country, and Judgment will be set aside. There is no way for the Plaintiff to alter this outcome. With the debtor outside of Australia, the courts do not have jurisdiction and have no option but to set aside the Judgment. Not only is your Judgment set aside, the SLC is also deemed invalid. To recommence proceedings, you need to issue a new SLC.We have experienced further twists in the above scenario, where our Judgment was set aside and SLC deemed invalid and at the date the Judgment set aside it was 6 years and 1 month since a payment was received on the account. The debtor applied to the court to have Judgment set aside and was successful on the basis of being overseas. Once Judgment had been set aside and the SLC deemed invalid, the account was statutory barred and no longer collectable. If we were aware that debtor was overseas we would have been able to prevent this situation and collect the debt in full.