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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.

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.


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.

Postponement of Enforcement Proceedings

Tuesday, August 25, 2015 - Posted by Michael McCulloch

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.


Updated debt collection guidelines issued by ACCC and ASIC July 2014

Wednesday, July 09, 2014 - Posted by Philip Harvey

The Australian Competition & Consumer Commission ("ACCC") and the Australian Securities and Investments Commission ("ASIC") released an updated guide to debt collection on 8 July 2014.

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. 

Debt Collection Contact Hours

  • Phone: Monday to Friday 7.30am to 9pm. Weekends 9am to 9pm with no contact recommended on public holidays
  • Face to face: Monday to Friday 9am to 9pm. Weekends 9am to 9pm with no contact recommended on public holidays
  • All workplace contact to be the debtors normal working hours if known, or 9am to 5pm weekdays.

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.

 


Legal Action to recover debts in Tasmania

Tuesday, August 13, 2013 - Posted by Philip Harvey

In this review of the debt recovery process using the legal system in Tasmania, 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


Debt recovery legal obligations when commencing legal action

Wednesday, February 20, 2013 - Posted by Philip Harvey

When commencing legal action to collect a debt, you are bound by a number legal obligations. These are common sense that are generally followed as a matter of course by everyone. All jurisdictions in Australia have these obligations (on both Plaintiffs and Defendants), with Victoria being the most explicit and the best example to go through.

The legal obligations in Victoria are called Overarching Obligations. They are as follows;

  • Paramount duty - you have the paramount duty to the court to further the administration of justice.
  • Overarching obligation to act honestly - you must act honestly at all times in relation to your case.
  • Overarching obligation-requirement of proper basis - you must not make claim or response to a claim that is vexatious, frivolous, an abuse of process or does not have proper basis.
  • Overarching obligation to only take steps to resolve or determine the dispute - you must only take steps that will resolve your dispute or case. You must not cause undue delay.
  • Overarching obligation to cooperate in the conduct of civil proceeding - you must cooperate with the other parties.
  • Overarching obligation not to mislead or deceive - you must not engage in conduct which is misleading or deceptive, or is likely to be misleading or deceptive.
  • Overarching obligation to use reasonable endeavours to resolve dispute - you must try to resolve your dispute with the other parties. You must use appropriate dispute resolution processes.
  • Overarching obligation to narrow the issues in dispute - if you are unable to resolve your dispute completely with the other party, you must try and resolve as many issues as you can, to narrow the issues that are in dispute.
  • Overarching obligation to ensure costs are reasonable and proportionate - you must ensure that any legal costs incurred during the case are reasonable and proportionate to the case, having regard to the complexity of the case and the amount in dispute.
  • Overarching obligation to minimise delay - you must ensure that you act promptly and minimise delay at all times during your case.
  • Overarching obligation to disclose existence of documents - you must disclose the existence of any documents that you have which are critical to the resolution of the dispute. Once you are aware you have a critical document, you must disclose its existence to the other party at the earliest opportunity. (Note: if you are given documents you can only use them in connection with your case).


When commencing proceedings, you are agreeing to abide by these obligations. If you do not understand these obligations you should  contact us.


Debt collection legal action defence on section 88 default notices

Monday, August 27, 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.

Court Proceedings to recover your debt when the Defendant is Overseas

Monday, May 21, 2012 - Posted by Philip Harvey

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.

Debt Collection & Centrelink Recipients

Monday, November 01, 2010 - Posted by Philip Harvey

The quick answer is not without the debtors consent.

The law states 

Social Security Administration Act 1991 (Cth)

Section 60(1) of the Social Security Administration Act 1991 (Cth) (“the Commonwealth Act”) provides that:


“A social security payment is absolutely inalienable, whether by way of, or in consequence of, sale, assignment, charge, execution, bankruptcy or otherwise.”


Section 60(2) of the Commonwealth Act provides for a number of exceptions which apply to the collection of certain Commonwealth debts and therefore are not relevant to any consideration of a debt owing to an Financial Services Provider by a Centrelink recipient.


Legal action against a centrelink recipient ?


Legal action is certainly possible against a debtor receiving Centrelink and Judgment will be entered against them.

However action to recover is limited. As the debtor is not employed a garnishee against wages is not an option.

A bank garnishee is possible however only funds in excess of the Centrelink payment that are held in the account for a period are  claimable .  As most Centrelink receivers do not hold large balances in their accounts this is generally not successful.

A writ to take goods and property can be successful if debtor has goods of value to take.


Writs in Debt Collection

Tuesday, June 01, 2010 - Posted by Philip Harvey

New South Wales

Prerequisites 

Judgment 

Execution Method

Execution by the Sheriff

 Valid for

 12 Months

 Official Name

 Writ for Levy of Property

Notes for New South Wales;
Sheriff cannot seize:

  • Personal clothing & bedding
  • Tools of trade

Victoria

Prerequisites 

Judgment

Execution Method

Execution by Sheriff

 Valid for

12 months

 Official Name

Warrant to Seize Property

Notes for Victoria;
Sheriff cannot seize:

  • Personal clothing & bedding
  • Tools of trade

Queensland

Prerequisites 

Judgment 

Execution Method

Execution by Bailiff

 Valid for

12 months

 Official Name

 Warrant of Seizure & Sale

Notes for Queensland;

Bailiff cannot seize:

Personal clothing,  bedding & Tools of trade

South Australia

 

Prerequisites 

Judgment

Execution Method

 Execution by Sheriff

 Valid for

 12 Months

 Official Name

 Warrant of Sale

Notes for South Australia;

Sheriff cannot seize:

Personal clothing, bedding & Tools of trade
Warrants of Sale are executed against personal property prior to proceeding against real property

Tasmania

Prerequisites 

Judgment 

Execution Method

Execution by Bailiff

 Valid for

12 months

 Official Name

Warrant to Seize & Sell Property

Notes for Tasmania:
Any personal property to be sold before  real property 
Bailiff cannot seize:Personal clothing & bedding, Tools of trade

Western Australia

Prerequisites 

Judgment / Means Inquiry

Execution Method

Execution by Bailiff

 Valid for

12 months

 Official Name

Property (Seizure and Sale) Order

Notes for Western Australia:
A Judgment Debtor’s saleable interest in any real estate property must not be sold unless the Bailiff is satisfied that the sale of personal property will not be sufficient to satisfy the Judgment.

Bailiff cannot seize:

  • Wearing apparel of the judgment debtor to the value of $1,250.
  • Wearing apparel of a dependant of the Judgment Debtor to the value of $1,250.
  • Family diaries, photographs and portraits.
  • Medical and dental aids and equipment.
  • Kitchen, dining furniture and implements up to a value of $1,250.
  • Bedroom furniture and bedding up to a value of $500.
  • Bedroom furniture and bedding of the Judgment Debtor’s dependents up to a value of $200.
  • Laundry equipment up to a value of $200.
  • Electrical goods used for family entertainment to a value of $300.
  • Ordinary tools of trade, plant and equipment,
  • professional instruments and reference books to the value of $2,500, which are used by the Judgment Debtor to earn income by personal exertion.
  • Refer here for a case study on a successful Writ

Northern Territory

Prerequisites 

Judgment 

Execution Method

Execution by Bailiff

 Valid for

 12 months

 Official Name

Warrant of Seizure & Sale

Notes for Northern Territory;
Sheriff cannot seize:
Personal clothing, bedding & Tools of trade

Australian Capital Territory

Prerequisites 

 Judgment

Execution Method

 Execution by the Sheriff

 Valid for

 12 Months

 Official Name

Seizure and Sale Order 

Notes for ACT;
Sheriff cannot seize:
Personal clothing, bedding & 
Tools of trade



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