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Garnishee Orders – 5 things to know.

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

In a previous blog, which can be found here, we explained the advantages and disadvantages of using Garnishee Orders to recover money from a Judgement Debtor.

Here are 5 things you may not have known about Garnishee Orders:

  1. There is no filing fee on a Garnishee Order.

The process of issuing a Garnishee Order against a Garnishee is a quick and inexpensive process.

  1. You can issue a Garnishee Order with limited information about your Judgment Debtor.

An advantage of Garnishee Orders is that you don’t need a lot of information in order to use the garnishing process. In most cases, the name of the debtor is all that is required, however the more information that is provided the quicker the process will be.

  1. A Garnishee Order for Debts can be Repeated.

A Garnishee Order for Debts will garnish an amount owed to, or held on behalf of, the Judgment Debtor at a particular period of time.  However, Garnishee Orders can be issued on the same garnishee multiple times. Therefore, should a Garnishee Order by issued on a bank, but not recover any monies at that time, a Judgment Creditor may choose to wait a further period of time and issue an additional Garnishee Order to the same bank.
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Giant new role for Matt de Boer!

Matthews Folbigg is excited to announce that they will again be the corporate sponsor of Matt de Boer of the GWS Giants in 2018! The former 138-game Fremantle Docker had a phenomenal 2017 season with the Giants even after battling with three hamstring injuries. “I still tried to lead and drive standards wherever I could in the meeting room and build relationships with players as well. Then I got fit and was able to play a role for the team,” he said when reflecting over the past year.

His efforts around the club have led to his promotion into the leadership group for 2018, “I’m excited to try and bring a certain level of effort and intensity to the role and try and do it justice… It’s about doing everything to be excellent. I’ve tried to make the most of every opportunity.”

We are very proud of Matt and his continued efforts over the past year and we are excited to see him on the field in his new role in 2018!

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PRIORITY PAID?

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

The Australian legal system has of late become a confusing morass of conflicting judgments on the order of priority of payment of creditors of insolvent trustees from trust assets. This has a significant impact on creditors, particularly employees, whose priority payment is no longer assured, by quirk of the structuring advice given to an employer without their knowledge or consent. Well the landscape was twisted again recently with a decision today by a five member panel of the Victorian Court of Appeal.

A number of States in the Commonwealth of Australia have issued judgments that differ in how to apply trust assets for trust creditors. In New South Wales, the 2016 decision of Brereton J in Re Independent Contractor Services (Aust) Pty Ltd (in liq) (No 2) held that the property of the trust was (perhaps unsurprisingly on one view) trust property. More surprisingly, his Honour found it was NOT company property distributable in the priorities provided for under section 556 of the Corporations Act 2001. His Honour relied upon the on the 1983 South Australian Supreme Court decision by then Chief Justice King in Re Suco Gold who held that trust assets are to be applied in accordance with the terms of the trust.
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Compensation Law – Court Costs

Court Costs – Compensation Law

Criticism from the Courts in relation to the costly nature of all Court proceedings is not lost on our Compensation Law Team at Matthews Folbigg. We know the importance of balancing our duty to you to achieve maximum compensation with a just outcome for all of our clients, including the duty to keep costs to a minimum.

If you have any concerns or require a more information regarding your Personal Injury or Compensation claim, please call our Personal Injury team at Matthews Folbigg:

Matthews Folbigg Pty Limited
Level 7
10-14 Smith Street
PARRAMATTA NSW 2150
Ph: (02) 9635 7966
E: Paulo@matthewsfolbigg.com.au

 

Our Personal Injury Lawyers can provide practical solutions and exceptional results in relation to your personal injury claim on a No Win, No Fee basis. 

Matthews Folbigg has over 50 years’ experience protecting personal injury and compensation rights of people living in Parramatta and the Hills. 

 

 

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AIRBNB – LEASE OR LICENCE?

Does an AirBnb arrangement create a lease or licence?

Due to the advent of online letting platforms such as AirBnb, short-term rentals have become increasingly popular. However, these kinds of arrangements present many legal ramifications.  The case of Swan v Uecker [2016] VSC 313 is a recent example of how AirBnb can create confusion about whether such arrangements can be classified as a lease or licence.

The Facts:

A landlord leased a two bedroom apartment to a tenant under a lease. The terms of the Lease permitted subleasing but required the consent of the landlord. . However, without consultation with the landlord, the tenant entered into what they classified as “licences” with Airbnb guests. These “licences” allowed AirBnb guests to stay in the apartment for between three and five days and occupy the entire apartment without the tenant being present. As part of the arrangement, all of the bookings were made online, the guests agreed to leave at the end of their stay and the premises were said to be the tenant’s principal place of residence.
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CREDITORS AND THE INSOLVENCY LAW REFORM ACT 2016

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

As the 2017 year draws to a close, creditors would be aware that both instalments of the Insolvency Law Reform Act 2016 (“the ILRA”) have come to pass.

What should creditors be aware of under the new regime?

The ILRA is an attempt to reform the insolvency law but also to provide an improvement in the confidence of the public in the overall performance of the trustees and liquidators appointed to the various estates and administrations that are commenced every day.

Under the Corporations Act 2001 only the liquidator of the company can commence an action for preference payments or voidable transactions. The ILRA allows a liquidator to assign a voidable transaction to a third party (including creditors!). This may result in claims being commenced which the liquidator thought were not commercial to pursue.

Under the ILRA creditors are given significant additional powers to call meetings, request information, and documentation regarding the administration of a bankrupt or corporate insolvency administration. This gives control, upon the passing of a resolution, to give certain directions to the trustee or liquidator and in addition, to remove the trustee or liquidator, although the practitioner has a right to apply to the Court to avert removal.
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A matter of some interest…

By Jeff Brown, a Principal of Matthews Folbigg, in our Insolvency, Restructuring and Debt Recovery Group.

A recent Supreme Court decision serves as a timely reminder of the care to be employed when deciding whether a statutory demand requires a verifying affidavit.

Merlo Group Australia Pty Ltd (“MGA”) obtained a judgment in the District Court against GTH Equipment Pty Ltd (“GTH”). A judgment/order was entered by the Court, recording that “[MGA’s] motion for summary judgment is granted so far as the claim for $143,000 is concerned. Judgment in favour of [MGA] in the sum of $143,000 together with interest under the contract from 3 February 2015.” (Emphasis added).

The claim arose under a contract which included a term that GTH would pay interest at the rate of 15% on all overdue accounts.

A couple of months after judgment was entered, GTH sent to MGA a cheque in the amount of $143,000. Just prior to receiving the cheque, MGA instructed its solicitors to issue a statutory demand in the amount of $198,425.23 comprising the judgment sum plus an amount calculated as interest at the rate of 15% per annum up to the date of the statutory demand.
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DEBT RECOVERY – BANKRUPTCY ENFORCEMENT

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

Obtaining a judgment from the Court is the first step in the debt collection process.  Enforcement is the next step but which option is going to recover that debt.

One option is to proceed with an application to have the individual declared bankrupt.  In an effort to avoid bankruptcy, the individual will have to pay the judgment debt or make other arrangements satisfactory to the creditor.

There is a finality to bankruptcy and so the process to obtain the order gives every opportunity to the judgment debtor to pay the debt.

The application to the Court is by way of a Creditor’s Petition.  The minimum due to the creditor must exceed $5,000 and rely on an act of bankruptcy committed by the individual within six months prior to the presentation of the Petition to the Court.

The most common form of an act of bankruptcy relied upon is non-compliance with a Bankruptcy Notice served upon the individual.  There are other forms of acts of bankruptcy as set out in section 40 of the Bankruptcy Act 1966 such as a Writ of Execution being unsatisfied or “keeping house” to avoid his/her creditors.
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