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Double Whammy! When cost orders become a further debt

By Hayley Hitch a Solicitor of Matthews Folbigg Lawyers in our Insolvency, Restructuring and Debt Recovery Group

In one of our recent matters, proceedings were commenced against a debtor, and the relevant guarantor, in the Local Court of NSW for recovery of a debt, being non-payment of services rendered by our client to the debtor.

Local Court proceedings

The defendants were at all times self-represented in those proceedings and took steps to file defences, out of time (and without leave) and also failed to appear in Court on several occasions. This ultimately led to:

  1. the defences being struck out;
  2. cost orders being made against the defendants; and
  3. Judgment being entered in favour of our client in the vicinity of $40,000.

Multiple attempts were then made by one of the defendants to set aside the default judgment and the various cost orders.

The last of these applications was held by the Local Court to be an abuse of process and the Court strongly urged the defendant to obtain legal advice before taking any further action.
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Can you serve legal documents by Facebook?

By Andrew Behman, an Associate of Matthews Folbigg, in our Insolvency, Restructuring and Debt Recovery Group

Yes, it is possible to serve documents via Facebook. In an earlier blog “Serving debtors that don’t want to be found“, we discussed how legal documents can be served by substituted service. Service via Facebook, LinkedIn and Instagram are some of the many methods legal documents can be served by substituted service.

In possibly a world first in 2008, the ACT Supreme Court granted orders for substituted service for the police to serve legal documents via a private message on Facebook. Since then, there have been many occasions in which the courts have allowed legal documents to be served via Facebook. You might even remember that in 2012, the District Court of NSW allowed for legal documents to be served on the rapper Flo Rida via his official Facebook page. Those orders for service via Facebook were ultimately overturned on appeal because, among other reasons, the evidence did not show that Facebook page through which the documents were served was actually the Facebook page of Flo Rida.
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Serving debtors who don’t want to be found

By Andrew Behman, an Associate of Matthews Folbigg, in our Insolvency, Restructuring and Debt Recovery Group

In an earlier blog “When is an old debt too old to collect“, we discussed how some of the more difficult to collect debts are often placed in the ‘too hard basket’. An all too common reason that these debts are in the ‘too hard basket’ is because you can’t find the debtor. They’ve moved address and you can’t find them to be able to serve them with legal documents. However, this is not the end!

Yes, the law usually requires that legal documents be served personally. This is to make sure the defendant actually receives the legal documents and knows about the legal proceedings against them.

However, the court rules allow for you to serve legal documents in other ways. This is known as “substituted service”. Legal documents served by substituted service are deemed to be served and will allow you to continue proceedings to recover your debt. Some examples include serving legal documents by email, or even by leaving them at the last known address of the debtor and sending them a text to let them know where the documents have been left. In the social media era the courts are also becoming more prepared to make substituted service orders involving use of social media such as Facebook.

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I Object!: The Importance of Strict Compliance with the Notice of Objection Regime

By Bonnie McMahon an Associate of Matthews Folbigg, in our Insolvency, Restructuring and Debt Recovery Group

In the recent decision of Jones and Inspector-general in Bankruptcy [2018] AATA 3260 (“Jones”), the Administrative Appeals Tribunal has made it clear that a trustee in bankruptcy who files a notice of objection to discharge, needs to comply strictly with the requirements of the s 149D(1) of the Bankruptcy Act 1966 (Cth) (“the Act”), otherwise it is likely that the decision will be cancelled on review, either by the Inspector-General in Bankruptcy or the Tribunal.

The Ground

In Jones, the trustee in bankruptcy (“the Trustee”), had filed a notice of objection to discharge, on the ground set out in s 149D(1)(d) of the Act, that:

the bankrupt, when requested in writing by the trustee to provide written information about the bankrupt’s property, income or expected income, failed to comply with the request.”

As identified by the Tribunal, this provision contains five equally important elements which are as follows:
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Debt Collection – How not to

By Darrin Mitchell, Senior Associate at Matthews Folbigg in the Insolvency, Restructuring and Debt Recovery Group

Credit Managers and anyone responsible for debt collection or credit control in a business organisation should be aware of the right and wrong ways to collect a debt.

In a recent decision of the Federal Court of Australia in Australian Competition and Consumer Commission v ACM Group Limited (No 2) [2018] FCA 1115 the Court was critical of the actions by a collection agency in the pursuit of a debt.  By example, the Court held that the agency was relentless in telephoning a care facility on over 40 occasions to attempt to speak with a stroke victim patient whose telecommunications debt was unpaid, saying that high-pressure debt recovery techniques are inappropriate.

The Court was also critical of letters of demand that over capitalised statements such as “NOTICE OF INTENTION TO COMMENCE LEGAL PROCEEDINGS”.  It said that the continued dispatch to a customer of letters that use of the words “intention” and “may” to threaten legal action was conduct that was misleading and deceptive within the meaning of the Australian Consumer Law and unconscionable.
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I only have the business name of the debtor, can I still sue them?

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.
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Legal Agents & Agency Work

Matthews Folbigg Lawyers provide agency work services and can act as your legal agents for all matters in Parramatta.

We are located within close proximity to the Parramatta Court Precinct and are able to act as your agent with short notice. We pride ourselves with the knowledge and extensive experience with the courts in Parramatta where we appear regularly. You can be confident that our solicitors will achieve the desired result for you at competitive rates. We also understand you need to report to your client in a timely manner, therefore we endeavour reporting to you on the same day of the court appearance either in writing or by phone.

We can attend the following Courts as your agent:

  • Local Court (Criminal and Civil)
  • District Court (Criminal and Civil)
  • Family Court

We can attend to the following:

  • Attendance at interlocutory hearings, Notice of Motions, Pre-trial Reviews, Call overs, Status Conference, Pre-trial Conference or Directions Hearings;
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Debt Recovery from a Company that has ‘Ceased to Be’…

By Renee Smith a Solicitor of Matthews Folbigg, in our Insolvency, Restructuring and Debt Recovery Group.

What sort of debt recovery procedure exists for companies that have been deregistered? From time to time Matthews Folbigg are asked to advise clients in relation to debt recovery and enforcement of debts against debtor companies who have been deregistered.

So what can be done for debt recovery against a deregistered company?

Under section 601AD the Corporations Act 2001 (Cth) (“the Act”), once a company is deregistered it ceases to exist as a legal entity. As Monty Python would put it, the company, far from pining for the Norwegian fjords, ‘is no more’, and ‘has ceased to be’. As a result, all of the company’s property vests in ASIC (or in the Commonwealth if held on trust – a not uncommon situation for trading trusts) and any legal proceedings cannot be commenced or continued.

Unlike the Norwegian Blue, however, it is possible to resurrect a company that has been deregistered, for the purpose of enforcing a claim. This is under section 601AH(2) of the Act by making an application to the Federal Court or the Supreme Court of NSW as “a person aggrieved” by the deregistration. It is also possible for ASIC to reinstate the company if satisfied the company should not have been deregistered however ASIC’s preference appears to be to leave these matters for the Court if possible.
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