Debt recovery court proceedings can be difficult to navigate if you are unfamiliar with legal documents, procedures and attending court. This article will give you the basics on what to expect when recovering your debt if court proceedings commence.
General debt recovery proceedings are dealt with by the state courts: the Local Court, District Court and Supreme Court. The court you commence your debt recovery proceedings in will depend on the amount of the debt that your debtor owes you. Each court has a specific limit based on the amount you claim:
- Local Court: claims up to $100,000;
- District Court: claims between $100,001 and $750,000; and
- Supreme Court: claims of $750,001 and over.
What’s the First Step?
The first formal step in debt recovery proceedings is to file a statement of claim with the appropriate court.
Statement of claim: A court document which sets out the details of your claim, which are known as the ‘pleadings’ and ‘particulars’.
Pleadings: Significant facts that form the basis of your legal claim.
Particulars: Additional and necessary details that allow your debtor to understand the claim being made against them.
The statement of claim is the legal foundation of your debt recovery court proceedings. If not drafted correctly, the court may dismiss your claim or enter judgment in favour of your debtor, not you.
Once filed, you must ‘serve’ your claim on your debtor. This can mean two things:
- if your debtor is a company, you may serve your claim by sending it to the company’s registered office by ordinary pre-paid post; or
- if your debtor is an individual, you will need to serve them personally, meaning you will need to hand the documents to them.
Finally, your debtor then has 28 days to either settle the debt or file a defence to the statement of claim.
Proceedings With No Defence
The term ‘undefended proceedings’ refers to a situation where your debtor does not file a defence within the required 28 day period. When this occurs, you are entitled to make an application to the court for default judgment.
As part of your application, you will need to swear or affirm an affidavit (written evidence or statement of facts) confirming that the debt is still owed. You will also have to file an affidavit of service confirming how you served the debtor with the claim.
If you proceed with default judgment, there is no need to attend court. When the the court has entered judgment, it will notify you.
Once the court has entered default judgment against your debtor, there is still no guarantee that they will make payment. Therefore, it may be necessary to commence enforcement action to recover what is now known as the judgment debt.
Proceedings With a Defence
However, if your debtor believes that they do not owe the debt (or a part of the debt), they will probably file a defence with the court. Common defences in debt recovery court proceedings include allegations that:
- goods have not been supplied, or they are defective; or
- services were not performed at all or to the appropriate standard.
Once the debtor has filed a defence, the parties must take steps and comply with any orders of the court. The parties must introduce evidence in the form of a written statement of facts to prove their claim.
You will have to attend court a number of times throughout the proceedings. These include:
- Initial call-over: The court will list the matter for call-over, generally within six weeks from when the defence was filed. The purpose of the call-over is for the court to give directions to the parties. This is so the proceedings move quickly.
- Second call-over or directions hearing: This court listing is generally 28 days after the first call-over. The court will:
- set a review date;
- set a trial date; and
- give any additional directions to the parties.
- Pre trial review: The purpose of the pre-trial review is for the court to check that all previous court directions have been complied with. The court also checks that the proceedings are ready for trial.
- Trial: This is the final hearing where the judge or magistrate determines the claim based on the evidence before the court and gives their ‘judgment’, which finalises the proceedings.
However, in most instances, if the court awards a judgment in your favour, it will add interest and legal costs to the debt.
Court proceedings and legal documents can be overwhelming for anyone who does not have legal experience. It is important that you have a lawyer correctly draft your legal documents. You must also follow any court timetable. If you would like any further information about debt recovery court proceedings, get in touch with LegalVision’s debt recovery lawyers on 1300 544 755 or fill out the form on this page.
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