Are You Owed Money?
Have you loaned money or do you provide a service or goods to someone? Have you tried to provide friendly reminders and negotiations and the debt is still not paid? You are not alone, many businesses and individuals are in the same position. What should you do?
Letter of Demand
Write a letter of demand to put the debtor on notice that you are prepared to go to court. This letter should set out details the basis of your claim and the amount of the debt.
The debtor may offer to pay your debt in instalments or negotiate the debt amount. In some cases, this letter clicks the debtor into gear to pay their debts.
If you do not hear from the debtor within 21 days of sending this letter, you escalate the matter.
Start a Claim
In South Australia, if the debt owed to you is $12,000 or less you may commence a minor civil claim in the Magistrates’ Court. If the debt is between $12,000 and $100,000 you may commence a general civil claim in the Magistrates’ Court.
Your claim must include the amount that you want to claim, the name and address of the defendant, and the reason you believe you are owed money.
It is important to keep documents that prove the debt, such as your invoices, agreements/contracts, emails and bank records.
After your claim is filed with the Court, it must be served on the defendant. The defendant will then either admit the money is owed to you, file a defence and/or counter-claim or not respond.
If a defence and/or counterclaim is filed, you will receive a copy and a notice of a directions hearing. The defendant has only 21 days in which to file a defence. If the defendant has not responded within 21 days of receiving your claim you may make an application for default judgment (below).
At a directions hearing the Court will try to resolve the dispute.
If your matter cannot be resolved, the Court may decide a trial is necessary.
A trial will only occur if the debt is disputed by the defendant. You and the defendant will have an opportunity to present your arguments, evidence and any witnesses. If you are successful, the Court will ask the defendant to make arrangements to pay you.
If the defendant has failed to file a defence, you may make a request to the Court for Judgment in Default.
Essentially, default judgment means the defendant is considered to have accepted your claim.
There are a number of ways you can enforce judgment:
- Investigation hearing: This hearing is to determine whether the debtor has the ability to pay the debt. Prior to the hearing the debtor is required to detail their income and expenses. The debtor is required to attend this hearing.
- Warrant of sale: this is issued by the Court and gives the Sherriff authority to sell property owned by the debtor to pay the debt.
- Charging order: you can place a charging order over the debtor’s property. This means that the debt will be repaid whenever the property is sold or transferred.
- Garnishee order: this allows any money owed to the debtor is to be paid directly to you (for example, a debt owed by a third party).
- Bankruptcy: you can make an individual debtor bankrupt if the debt is more than $5,000. If a person is made bankrupt, all of their assets are assigned to a trustee who sells the assets and shares the proceeds with their creditors.
- Liquidation: you may take steps to have a debtor that is a company placed into liquidation if the amount of the debt is $2,000 or more.
If you would like assistance with a debt or advice about the debt recovery process, speak to one our friendly staff today.