By Renee Smith a Solicitor of Matthews Folbigg, in our Insolvency, Restructuring and Debt Recovery Group.
When looking to commence proceedings against a debtor, one of the first steps to take is to identify exactly who (or what) it is that you have contracted with. Usually this will be the party that is listed as your customer in the written contract. This may be an individual, company or trustee of some form of trust. Sometimes of course, the relevant paperwork is either missing, or was never created in the first place.
In some cases the identification process is not straightforward and can potentially lead to a delay in recovering the debt, or worse still, make it impossible to commence debt recovery.
The registered name of a business may, or may not, also be the correct legal entity to sue. It is important to investigate beyond the business name that you know the debtor by, to see who, or what, owns the name and whether the name has been registered.
Thankfully, when time is of the essence or investigations to date have not been successful, the Courts do allow, in limited situations, for proceedings to be commenced against a defendant operating under a business name. For the purpose of the proceedings, where the business name is not registered, the Court will take the unregistered business name to be a sufficient description of the defendant.
However, in any proceedings in which a defendant is sued under a registered business name, the defendant must defend the proceedings in his or her own name and provide to the Court the names and addresses of all persons who were carrying on a business under the business name when the proceedings were commenced.
As the Plaintiff however, you will still need to take such steps that are reasonably practicable to find out the correct legal entity name and address of the defendant. Should that information be found after the commencement of the proceedings, you are required to file amended pleadings to enable the proceedings to be continued against the defendant in their own name.
In all the above situations, the Court will usually not allow, for any further steps to be taken in the matter unless the documents in the proceedings have been amended to identify the correct legal entity.
A potential benefit to commencing proceedings against a defendant through their registered business name is that should the defendant choose to defend the matter, the defendant is obligated by law to provide to the Court (and therefore to you) the details of the correct legal entity. This could assist should investigations into the correct legal entity not have been successful.
However, should no further information be able to be found regarding the correct legal entity of the defendant, the proceedings are unable to be progressed.
The specific rules in relation to commencing proceedings against a defendant operating under a business name can be found here. (UCPR Part 7, Division 5 – Business Names)
The law relating to identification of parties to a dispute are as complex as they are important. If you would like more information or advice in relation to these issues, or any issues on insolvency, restructuring or debt recovery law, contact Renee Smith on (02) 9806 7485 or renees@matthewsfolbigg.com.au or a Principal of the Matthews Folbigg Insolvency, Restructuring & Debt Recovery Group:
Jeffrey Brown on (02) 9806 7446 or jeffreyb@matthewsfolbigg.com.au
Stephen Mullette on (02) 9806 7459 or stephenm@matthewsfolbigg.com.au
