Debt Recovery - The Common Stages

Date: September 24, 2008

Authors: Adrian Culas LL.B. (Hons.), CLP.

At LAC Lawyers we are able to assist you with all debt recovery matters and advice you on the best method of enforcement to avoid unnecessary costs having regard to the circumstances of each matter.

The various stages of debt recovery process are normally as follows:-

Stage 1 - Commencing an action 

Your first step would be to file a Statement of Claim in the appropriate court detailing the parties to the proceedings, the facts in support of your claim, the amount due under the claim and the time frame in which the Defendant is required to take appropriate action. The customer for the purpose of these proceedings shall now be known as the ‘Defendant’ and you or your company will now be known as the Plaintiff.

Stage 2 - Serving the Statement of Claim

The Statement of Claim must be served to the defendant and there are different rules that apply to the service of the Statement of Claims. You may need to seek legal assistance on the suitable method of service of the Statement of Claim.

Stage 3 - After service of the Statement of Claim

After being served with the Statement of Claim, the Defendant’s options are as follows:-

  1. Resolve the matter by paying the amount in the statement of claim together with cost and interest. This again will bring the court proceedings to an end.
  2. Apply to the court for an order to pay the judgment debt by instalment. By applying for an instalment order, the Defendant admits the claim and amount due and consequently, judgment will be entered in favour of the Plaintiff for the amount stated in the Statement of Claim.
  3. The defendant could contest the matter and the court would set the matter down for pre trial review depending on the procedures at the appropriate courts. The matter eventually would be heard and the outcome of the hearing would result in either judgment being entered for the Plaintiff or the claim dismissed against the Plaintiff. Due to the complex nature of formal Court proceedings, it is advisable that you seek the assistance of your solicitor if your debt recovery goes that far.
  4. Fail or neglect to file a Defence within 28 days from the date of service of the Statement of claim. This would entitle the Plaintiff to a decree of default judgment against the Defendant for the sum stated in the Statement of Claim.

Stage 4 - Enforcement of the judgment

The fact that judgment is entered for you (now known as ‘Judgment Creditor’) under paragraph 3 and 4 above, does not mean that the Defendant (now known as ‘Judgment Debtor’ )is going to make payment. The judgment merely confirms that the sum in the statement of claim is due and owing to you and that there is no dispute as the amount claimed. Your next step would be to proceed with enforcement of the judgment against the Judgment Debtor.

To recover the amount due and owing under the judgment, you may:

  • Request for a writ of levy on property from the appropriate court whereby the Sheriff will attend the property of the Judgment Debtor and seize the assets of the Judgment Debtor. The available assets will then be auction on a date to be fixed by the Sheriff. In the even the auction sum is insufficient to meet the judgment sum, other enforcement methods are still available to recover the balance sum due.
  • Request for a writ on title against land owned by the Judgment Debtor, only in cases where a writ of levy on property was unsuccessful and the judgment sum exceeds $10,000.00. The sheriff will seize the property of the Judgment Debtor and auction the property to recover the outstanding amount;
  • Request for a garnishee order addressed to the judgment debtor’s employer, credit unions or other parties that holds or owes the judgment debtor monies.  The order directs the garnishee to pay to the judgment creditor monies held by the garnishee or owed to the judgment debtor above the Garnishee Amount. (Currently $299.92 per week) in satisfaction of the judgment debt;
  • Request for an examination summons if the judgment debtor's financial position is unavailable.  The Judgment debtor upon service of the summons will be required to attend the appropriate court to be examined by the Judgment Creditor regarding his/her financial position.;
  • Proceed with bankruptcy proceedings against the Judgment Debtor in the case of individuals or winding up in the case of a company if the debt is over $2,000.00. These bankruptcies are normally administrated by a registered Trustee or ITSA and the normal duties of the Trustee is to determine what assets are available to pay the creditors, sell or recover assets for the benefit of the bankrupt and pay dividends to the creditor when there are sufficient funds to do so.

The enforcement process may become complicated and you may need to seek legal assistance to advice you on the best possible enforcement process and the technical rules that apply to each method of enforcements.

Contact us now for Fast, Accurate and Timely legal advice

Phone LAC Lawyers on NSW 1300 799 888 or VIC 1300 734 638 or send us an email

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