Litigation In Respect Of An Individual
Proceedings against an individual are commenced with a Notice of Proceeding and Statement of Claim. Credit checks on the individual(s) are also recommended. Court costs are allowable and added to the debt.
The debtor has 30 days in which to file a Statement of Defence.
- If the claim is defended charges will be on a 'time and attendance' basis.
- If no defence is filed then judgement is entered. Once again costs are added to the debt.
- A judgement is valid for six years. It allows you to re-assess the debt and considers and possible further enforcement actions.
Summary Judgment
There is also a procedure available called Summary Judgement. Summary Judgement is suitable only for claims where an individual would have absolutely no defence to the claim. It is appropriate to utilise this procedure only in certain circumstances.
Obtaining Judgment
Once the judgement against an individual has been sealed, enforcement of the debt can take place.We recommend that debts over $2,500 be pursued by way of bankruptcy as this may result in a quick outcome. If payment has not been received within 15 days of service of the notice then a bankruptcy petition is prepared. A hearing date is allocated for bankrupting the individual. Once again, court costs are awarded at the hearing to the creditor.
Obviously this course of action would not be recommended if the debtor is in a very bad financial situation. If this is the case order for examination is recommended whereby the debtor is served by the bailiff of the court and examined at the court as to his financial means. The court will make an order for payments to be made to the creditor on a regular basis. As we are reliant on the court bailiff to serve the documents we can experience substantial time delays and difficulties in having debtors served.
There is provision called the "protected earnings rate" which is designed to leave the judgment debtor with sufficient means to support himself and those dependant upon him. Should the Judgment Debtor's income fall below the protected earning rate, the employer isnot obliged to deduct the charged amount. Howeer if the employer fails to deduct the charged amount and make payments as directed, without good cause, the employer is liable to be sued for th total sum of the judgement debt.