If a debtor is refusing to pay and they owe you more than $30,000, you may have to take Court action in order to get your funds. The Court process can seem daunting at first, but it doesn’t need to. Here is an outline of the steps to take when filing court proceedings to recover a debt.

If the debt is less than $350,000, you can make a claim to the District Court to settle your dispute. If it is over $350,000, the dispute must be settled in the High Court. The process for each Court is similar, but the High Court generally requires more of an investment than the District Court.

Filing Legal Proceedings

The process begins by filing a Statement of Claim and a Notice of Proceeding with the relevant Court, and serving these documents on the debtor.

A Statement of Claim informs the Court and the debtor what you are seeking and why, while a Notice of Proceeding tells the debtor that you are taking action against them.

If your claim is in the District Court, you will also need to provide the documents that you will be relying on when you submit your claim. For the High Court, these documents won’t need to be provided until later in the proceedings, along with a formal list.

Summary Judgment

If you believe the debtor has no valid dispute about the debt, you can apply to the Court for Summary Judgment. This fast tracks the process when the debtor has no valid defence.

To file for a Summary Judgment, you must supply two additional documents. The first is an affidavit, which provides evidence on oath in support of the facts that you are relying on in your claim. The other document is an interlocutory application for Summary Judgment.

Legal advice can be very beneficial when undertaking this process, as it is important to get the information correct at the beginning of the process.

It is also important to note that if your contract has a clause allowing for the recovery of legal costs, then any legal fees will be recoverable against the debtor.

Service

After filing the documents with the Court, they must be served on an individual defendant personally or at a co registered office if the defendant is a company. This can either be done by yourself or a service agent.

If you cannot locate the debtor, you may need to apply to the Court for substituted service. Substituted service means that you can serve the debtor through alternatives such as email, Facebook or a family member. However, this can only be done if there is a legitimate reason why you cannot serve the documents in person and only if approved by the Court.

If you are serving the documents yourself, you must ensure that you record the date, time and location of service, and ask the debtor to acknowledge receipt.

After the documents have been served, you will then need to file an Affidavit of Service with the Court to let them know that the debtor has the documents and is aware of the proceedings.

Once this process is complete, the matter will continue through various steps before an actual hearing takes place. If the Court gives judgment in your favour, the debtor should be contacted immediately to make payment.

The Court process can seem confusing if you have never been through it before. It is essential to seek advice from a professional with experience in the area, to ensure you complete the necessary steps correctly and get your money back into your bank account where it belongs.

 

Leading law firms committed to helping clients cost-effectively will have a range of fixed-price Initial Consultations to suit most people’s needs in quickly learning what their options are.  At Rainey Collins we have an experienced team who can answer your questions and put you on the right track.

Alan Knowsley and Hunter Flanagan-Connors