Dispute Resolution

Have you just been served?

COURT PAPERS JUST DELIVERED TO YOUR OFFICE?

If you have received a Statement of Claim, Summons, Originating Process or Writ, be aware that you must act very quickly.

Replying to the person, entity or firm that issued the Court/Tribunal papers is not enough. Formal steps to file an Appearance, Defence, Notice of Intention to Defend or Reply must be taken within the relevant time.

The proper form of response varies depending on which court and in which jurisdiction the proceedings have been commenced as they each have different Rules and Regulations that apply.

Generally, a Defendant, Respondent etc will have only 28 days or such other period as may be specified in the document in which to file the appropriate response. Failure to do so in time or at all will leave the recipient open to summary or default judgment (automatic judgment against you without a hearing).

Failure to file and serve the appropriate document in response in time can have dire consequences.

A judgment can affect credit ratings, the ability to seek finance in the future and is a precursor to enforcement actions such as bankruptcy litigation, liquidation and winding up of companies, garnishee orders, writs of possession, visits from the Sheriff, notices for examination etc!

Default judgments can often be set aside, but this comes at a cost and immediately puts you on the back foot. In litigation, it is best to stay ahead of the game and be pro-active.

Most court documents are required to be served personally however, companies can be served by post at their registered office. Documents commencing proceedings for small claims (claims under $10,000) can be served by post by the court.

If a court document is served, steps should be taken to immediately seek advice from (rather than leaving it to the last few days).

McKillop Legal can assist in various ways such as:

  • seeking more details of the claim from the lawyers for the party commencing the claim,
  • filing and serving the appropriate document to prevent default judgment,
  • advising on the claim and its prospects of success,
  • filing any defence document
  • preparing your evidence,
  • attempting to resolve the matter prior to any hearing, and/or
  • if necessary, running the hearing with a barrister.

FURTHER INFORMATION

Craig Pryor is principal solicitor at McKillop Legal. For further information in relation to litigation and dispute resolution or any commercial law matter, contact Craig Pryor on (02) 9521 2455 or email craig@mckilloplegal.com.au.

Do you have customers that owe you money?

WHAT OPTIONS ARE THERE TO CHASE DEBTS?

Where a customer has not complied with the terms on which goods or services have been provided, in that they have failed to make payment as and when required and despite repeated requests, it can often be of assistance for a demand letter to be sent by a lawyer.

The letter of demand will usually require payment in full by a defined time or may propose a payment plan with payment by instalments.

McKillop Legal is often called upon to advise in relation to debt recovery issues. We find that a strongly worded demand, clearly setting out the situation and seeking payment within a reasonable period usually results in payment.

There are various options available for business owners to recover moneys due.

If a letter of demand does not result in payment, there are various options available.

Where the debt is due by a company and the debt is more than $2,000 and it has not been disputed, a Creditor’s Statutory Demand can be issued under the Corporations Act giving the company 21 days to either pay the debt or to come to an arrangement to you for payment of the debt, failing which the company is presumed at law to be insolvent and can be wound up on application to the Supreme Court.

If an individual or partnership owes the debt, a company owes the debt and it is less than $2,000 or if a company debtor disputes the debt, then usually the commencement of proceedings will be necessary (and you would need to weigh up the costs and benefits of doing so to make a commercially sensible decision).

If the debt is over $5,000 and the debt is the subject of a judgment of a court, you can issue a Bankruptcy Notice. A Bankruptcy Notice provides for payment of the debt or a satisfactory arrangement for payment of the debt to be made within 21 days, failing which an “act of bankruptcy” has been committed, entitling you to commence proceedings in for a bankruptcy/sequestration order.

Options for enforcement of judgments also include:

  • Garnishee orders
  • Writ of Execution over property – where the Sheriff sells personal property, land etc
  • Instalment orders

FURTHER INFORMATION

For further information in relation to business succession, estate planning, litigation and dispute resolution or any commercial law matter, contact us on (02) 9521 2455 or email help@mckilloplegal.com.au

 

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