If you are owed money – whether from services you have provided, a loan you have made, or monies that you have paid on behalf of someone else – then you may need to commence proceedings to recover the debt.
Debt recovery in New South Wales is dealt with through the Court system. The amount of monies owed will determine the jurisdiction in which you need to commence proceedings. The Local Court determines matters up to $100,000. It has two divisions: the Small Claims Division which hears claims up to $10,000, and the General Division which hears claims over $10,000 but only up to $100,000. The District Court can determine debt recovery matters up to $750,000. Higher amounts are determined in the Supreme Court.
Each court has their own specific procedures and court rules that apply. These rules dictate how the civil case is to be run in their jurisdiction. The Small Claims Division of the Local Court has very simple, and easy to follow, procedures to help people navigate their way without a lawyer. The higher the Court, the more formal the rules of evidence and procedures become. It is not recommended to commence proceedings in the District or Supreme Courts without a lawyer.
How to commence debt recovery proceedings
To commence proceedings you will need to complete a Statement of Claim, and file it at the Court Registry which has jurisdiction to hear the matter.
The Claim will need to include the relief you are claiming, such as the amount of money owed, along with an outline of the pleadings and particulars. The relief can also include any interest and court filing fees. The pleadings and particulars are to be listed in numbered paragraphs, and should clearly set out why you are making the claim and how the debt arose. It would also include outlining any agreements in place, the type of agreement, when the debt arose, and if any repayments have been made.
Once the Statement of Claim has been filed in the Court it will need to be served on the Defendant. If the Defendant is an individual then you must organise personal service. If the Defendant is a company it can be posted to the company’s registered business address. This can be obtained by undertaking a search with ASIC. The Defendant will then have 28 days to file a defence, and make a cross claim, if applicable. If the Defendant fails to file a defence then you will be able to make an application for Default Judgment.
If a defence is filed then the matter may be listed for a pre-trial review in the hope an arrangement can be agreed upon, before the matter is listed for a hearing. When the matter is listed for hearing a timetable will be set for the filing of evidence, affidavits, expert reports etc.
Before commencing proceedings make sure you are aware of the court rules that apply to the case management of your civil matter.
How to recover monies once Judgment is obtained
Unfortunately, in some circumstances even when Judgment has been obtained the Defendant may refuse to pay. If this occurs, you may be able to enforce judgment.
To do so, you should send the Judgment Debtor (Defendant) an Examination Notice Form to complete and return to you, along with any documents that you request to be able to ascertain their ability to pay. This will give you an indication as to any assets they own that you may be able to get the sheriff to seize and sell. If they fail to return the completed form you can have the matter set down for an Examination Hearing by filing and serving an Examination Order.
If the Judgment Debtor fails to attend then a warrant can be issued for their arrest. Once you have received the completed financial affairs of the Judgment Debtor you will need to determine the best way to recover the debt. You can apply to the Court for the debt to be paid by instalments, to garnish wages, or for the Sheriff to seize and sell property.
If you are dealing with a case of debt recovery in New South Wales then you should consider speaking with a civil law lawyer to determine the best course of action.