Legal Support

Debt Collection Solutions

Dynamic Commercial Collection's inhouse legal support team has a wide range of experience in legal processes throughout Australia. We’ve put together a step by step of the debt collection legal process to assist with any uncertainties you have during the process. Because we know debt collectors and lawyers speak their own language we’ve included clarifications within debt collection laws, the litigation process, or general wording.

We’ll quote all costs up front; undefended/uncontested matters by our office, defended/contested matters by our professional solicitors. Proceeding with legal action against a debtor can have a number of benefits; they know you’re serious about the matter, it prompts them to discuss the debt or seek their own legal advice, a majority of legal fees are recoverable from the debtor, and judgments or decisions may be automatically registered against the debtor’s credit rating.

Legal Process Glossary

Enforcement Debtor

the defendant in enforcement proceedings


Plaintiff

Is the person or company starting the claim, also known as the creditor, or who the debt is owed to


Defendant

the debtor, the person or company that owes the debt


QCAT

is Queensland Civil Administrative Tribunal for minor debts up to $25,000


Magistrates Court

is for debts up to $150,000 handled by a solicitor


Enforcement Creditor

is the plaintiff in enforcement proceedings


What is Court Jurisdiction?

Before commencing proceedings, the Plaintiff needs to decide which Court or tribunal has jurisdiction to hear the matter. This essentially means you need to find the court with the appropriate and correct authority to handle the case.

How Does The Claim Process Work?

Your claim is the first document to commence the legal proceedings and will include; the debt amount, legal costs, and any interest recoverable from the defendant.

The claim is served to the defendant by a bailiff, process server, or our office.

The defendant then has 28 days to comply, settle, or file a Notice of Intention to Defend and Defence.

Getting More Information

One party may request from the other party further particulars of the other party’s pleadings. This can be done after the claim has been served on the defendant. The plaintiff may also seek further particulars of the defence. After the particulars have been provided, the parties may amend their pleadings, if needed.

Disclosure of Relevant Documents or ‘Discovery’

This stage usually occurs after the parties have finalised the pleadings. There are usually three stages to the disclosure or discovery:

Both parties undertake a reasonable search for relevant documents
The list of documents is provided to the other party (within 28 days)
Requested documents are provided to the other party

At this stage subpoenas against third party entities may be filed and served, seeking discovery of certain documents.

What is a Summary Judgment?

At any time after a defence has been filed, the plaintiff or defendant can file an application for Summary Judgement against the other party to resolve the matter without the need for a full trial. A very strong case, evidence in a supporting Affidavit and outline the laws is needed to get Summary Judgment and is at the court’s discretion.

Directions Hearing Conference

This type of hearing is a “Without Prejudice” meeting, whereby all parties come together with their solicitors to have a detailed discussion of the case in an aim to:

Both parties undertake a reasonable search for relevant documents
The list of documents is provided to the other party (within 28 days)
Requested documents are provided to the other party

The matter can be settled by a Settlement Agreement (outlining the default clauses clearly) at the Directions Hearing Conference, it can be recorded on the court file. Should the defendant fail to comply or default on the Settlement Agreement terms then the Plaintiff may have grounds to enter judgement against the defendant.

After

12

mo

No Action Taken

If no party has taken court action on the matter for over 12 months then the party that wishes to continue with the next action must serve a “Notice of Intention to Proceed” on the other side giving them one month notice of their intention.

After

24

mo

No Action Taken

If no court action has been taken on a legal matter for over 24 months a party is unable to continue with further action against the other party without approval or leave of the court by a Court Order. It is at the court’s discretion to allow the Court Order.

What is a Judgement?

If the defendant fails to respond within 28 days of the claim being served, the plaintiff may proceed with judgement by default against the defendant. An Affidavit of Service outlining how service was affected is filed with the judgement documents as evidence in court. This is a judgment without the need for a hearing.

What are the Enforcement Options?

Once the Judgment has been obtained against the debtor, we can review your options and assist with enforcement action in the Magistrates Court. If you are unsure of the defendant’s financial situation you can file an Enforcement Hearing Summons to get this information.

Enforcement Warrant for
Seizure and Sale of Property

An Enforcement Warrant for Seizure and Sale of Property instructs a bailiff to seize and sell certain types of personal property of the enforcement debtor at a public auction. You will need to know what property the enforcement debtor owns that may be seized and may require evidence in a Supporting Affidavit confirming that it is owned by the enforcement debtor.
*Please note that not all properties sell at auction and that additional fees may be requested by the bailiff.

Other Warrants

Enforcement Warrant for Redirection of Debt
This directs someone who owes money to the enforcement debtor to pay that money to you instead.
Enforcement Warrant for Regular Redirections from a Financial Institution
This directs a financial institution to redirect regular payments received by the debtor to you.
Enforcement Warrant of Redirection of Earnings/Garnishee Order
This seizes part of the wages of the enforcement debtor. Each payment made by the enforcement debtor’s employer is forwarded to you.

Insolvency Process

Statutory Demand

A notice forwarded to the debtor giving 21 days to pay the debt.

For undisputed debt against a company over $2,000.00
No legal action is taken beforehand as long as not disputed by the debtor
First document filed before filing the Application for Wind Up

Application for Wind Up

This document may be filed after 21 days or within three months of the Statutory Demand being served, it’s a formal application filed in the Supreme Court or Federal Court. A liquidator will be appointed to act once the debtor has been wound up.

Bankruptcy Notice

This is a notice filed with the Australian Financial Security Authority for judgement debts over $5000 and is served to the defendant personally or by post, delivery, facsimile, electronic transmission, or Substituted Service. The defendant has 21 days to pay or settle the notice, file an application to set aside the Bankruptcy Notice in the Federal Circuit Court.

Creditors Petition

The Creditor’s Petition must be filed within six months of the act of bankruptcy and there must have been an act of bankruptcy committed by the defendant. It’s a formal application filed in the Federal Circuit Court. This seeks a Sequestration Order from the court to be made against the defendant’s property. This petition is required to be served personally on the defendant at least five business days prior to the petition hearing date.

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