I want to sue someone for a debt – what do you need me to give you?

I want to sue someone for a debt – what do you need me to give you?

Sue someone for a debtYou have a debt you want recovered – we can help with that!  We do not want to waste your time or money – so in order to fast track the process to allow us to sue someone for a debt (remember we have a 24 hour turn around time on new referrals, and 8 hours if all materials are turned over at the time of referral), we need each of the following provided with your referral (scanned copies are more than sufficient):

1. Completed Credit Application, including any Terms and Conditions and/or Guarantee(s);

2. Invoices;

3. Current Statement of Account; and

4.  Any relevant correspondence between the you and your debtor.

Importantly, if there is a history of a dispute over the debt – for example, the debtor says that you did do “something” and so the debtor disputes your debt, then let us know this as well.  The last thing we want to do is push your demands against a debtor, when the fall out could be the debtor has a claim against you.  With the Australian Consumer Protection Laws as they are – it always helps to ensure we have you covered off in terms of reviewing such disputes before pushing debt recovery.  There may steps necessary to take before debt recover to ensure compliance with the Australian Consumer Protection Laws – after which you can move aggressively into the recovery process.  This is a rarity in our practice – but even one instance is too much if you are the one being investigated by the Fair Trade Office.

As our Strategic Plan provides, once we have your completed materials, you can elect a 24 hour demand, 48 hour demand, 7 day demand, 14 day demand or alternative demand process, before proceeding to legal (if required).  We find proactively addressing debtor claims, ensures payment before legal proceedings are required.  For those more difficult cases, we are positioned and offer court scale fee based legal proceedings with efficiency and transparency.

 If you have any questions about our recovery process, we welcome you to contact our offices on (07) 5574 3560 or email info@nautiluslaw.com.au. We thank you for considering Nautilus Law Group..

Submitted by: Nautilus Law Group

Where do I lodge my Claim and Statement of Claim against a Defendant?

Where do I lodge my Claim and Statement of Claim against a Defendant?

claim and statement of claimIn Queensland, “where” you lodge a Claim and Statement of Claim is dictated by the Uniform Civil Procedure Rules 2001 (“UCPR”).

Queensland has three different categories of Courts, which are essentially organised in terms of the matter types which each decide, as well as the level of dollar value to be considered:

1.       In the Magistrates Court for amounts up to $150,000.00;

2.       In the District Court for amounts from $150,000 – $750,000.00; and

3.       In the Supreme Court for an unlimited amount.

Once we determine the category of Court, we then need to decide which Registry in which to lodge your matter.  Unfortunately, the decision as to which Registry is chosen, does not necessarily have any correlation to your location.  The Claim and Statement of Claim should filed be in the Registry closest to one of the following:

1.       The Defendant’s  location; or

2.       The location in which the incident or contract giving rise to the Claim took place.

Selecting a more convenient “Registry” for you, may result in an Order for Costs against you if the Defendant successfully argues you have not complied with the Rules, with the inevitable change of venue for the proceedings.  Therefore, to avoid this expense, we strictly comply with the Rules in selecting the Registry.

The “Registry” grounds the location of your proceedings for the balance of the case.  For instance, if you have to attend Court, you will attend the Court associated with the Registry.  There are exceptions to this, and on occasion you can attend by telephone, but largely your case is tied to that Registry location.

A copy of the Claim must be served on each Defendant, each of which has 28 days from the day of service to file a defence or attend to the matter (such as payment of the debt).  (Please see our Articles for discussions on Service.)

If the Claim is disputed or a Defence is filed, a copy of must be served on you.  You are then provided 14 days to lodge a Reply.

If the Claim is paid in full or you no longer wish to proceed, a Notice of Discontinuance should be filed with the Court.  Alternatively, if no Defence is lodged (or alternative satisfaction of your Claim made), then you may opt to lodge a Default Judgment. 

If you have any questions or enquiries about lodging a Claim in Queensland, we welcome you to contact our offices on (07) 5574 3560 or email info@nautiluslaw.com.au. We thank you for considering Nautilus Law Group.

Submitted by: Nautilus Law Group

How does “service” of a Statement of Claim work?

After a Claim and Statement of Claim have been lodged with the Court and returned to us, the next step is to “serve” the documents on the Defendant in accordance with the Uniform Civil Procedure Rules 1999 (Qld) (UCPR).

Rule 105 of the UCPR states:

(1)   A person serving an originating process must serve it personally on the person intended to be served.

Service on an Individual:

Personal Service is performed by giving the document to the person mentioned in the document. If the person refuses to accept service, the Rules permit the service agent serving the document to place the document down in the person’s presence and then explain  what has been placed by the person.

Occasionally, we may be required to conduct a skip trace to find a Defendant.  A skip trace requires the engagement of an investigator to search a wide range of public and private records to find the historical movements of the Defendant.  Whilst a skip trace may not find the Defendant, it may bring to light contacts which we can use then to find the Defendant.

If personal service cannot be achieved as a result of demonstrated evasion by the Defendant or it can be demonstrated service can be undertaken by alternative means to personal service (although traditional service attempts have been exhausted), an Application for Substitute Service is the next option. Before such an Application can be considered, we must provide evidence as to all attempts undertaken to date relative to locating and serving the Defendant, as well as evidence to demonstrate that a proposed Alternative is likely to provide notice to the Defendant of the proceedings.

Service on a Company:

If the Defendant in the matter is a company, service is be undertaken by sending the documents by post to the Defendant’s registered office.

After Service:

Pursuant to the UCPR, the Defendant has 28 days from the date of service to file a Defence or reach an agreement with the Plaintiff (such as paying a debt in full or by entering into a payment plan, or engaging in conduct that is required by the Plaintiff of the Defendant in the Claim and Statement of Claim).

If no action is taken by the Defendant following such period, there are a number of options available, but the most logical in cases in which the debt is “liquidated” (i.e. for a fixed amount) is to seek a Default Judgment against the Defendant.  Following entry of a Default Judgment against the Defendant, the Plaintiff is then empowered to “enforce” the Default Judgment.

Effectively, service is the second “starting gate” to the process of chasing a matter.  Service can take a considerable period in many cases in which the Defendant is an individual, and is quite frankly, the most frustrating part for many of our clients.

We welcome you to contact our offices on (07) 5574 3560 or email info@nautiluslaw.com.au. We thank you for considering Nautilus Law Group.

How do I obtain a Default Judgment against a Debtor?

Prior to obtaining Default Judgment, a Claim and Statement of Claim must be filed with the Court on behalf of the Creditor outlining the relationship between the Creditor and the Debtor, the history of the supply of goods or services forming the basis of the Debt Claim, and the amounts outstanding and due (including interest and costs).

The Claim and Statement of Claim must be served on the Debtor (known in the legal documents as a Defendant”. Once the Claim has been served, the Defendant then has 28 days to file a defence or make payment.  Quite often, a Debtor will contact our Team to ask for a payment plan.  You are free to accept a payment in full (and you can require as a condition the payment of your legal fees), you can accept a payment plan (but are not required) or you are free to allow the matter to stand without prosecution (not recommended).

If there is, however, no contact from the Debtor and/or contact the Debtor provides no Defence, you are in a position to apply for a Default Judgment.

Obtaining a Default Judgment against a Debtor may be the only way to recover what is owed to you. A Default Judgment is an Order provided by the Court, and the Order sets out the amount outstanding owed to the Creditor.  Your legal fees (as assessed at Court Scale) are usually granted in the Order.

To apply to the Court for Default Judgment, certain conditions must be present:

–          The Defendant must have been served, with greater than 28 days lapsing between service and the date intended to lodge for Default Judgment; and

–          No Defence (or Conditional Defence) has been lodged.

Once the Court has granted the Application for Default Judgment, a copy of the sealed Judgment is returned to our Team and we then consult with you to determine what enforcement procedures you wish to take.

We are instructed Credit Reference Agencies receive copies of all lodged Judgments, which gives added pressure to Debtors because their ability to continue credit facilities with their banks and lenders is often impacted, and most certainly they have difficulty in obtaining further credit with an unsatisfied Judgment on their Credit Report.

We welcome you to contact our team on  (07) 5574 3560 or email us info@nautiluslaw.com.au. Thank you for considering Nautilus Law Group.

Submitted by: Nautilus Law Group