Once you have signed up to Lawpac, the debt recovery process begins with an instruction sheet. This document asks for your details, the details of your debtor and the debt, and the actions you would like us to take. In most cases we begin with a Letter of Demand.
Your debtor will receive a Letter of Demand, on our letterhead, within 24 hours of receiving your instruction. The letter will state the amount due, the date by which it is required to be paid, and that legal action will be taken if it has not been paid within the timeframe. A letter from a lawyer demonstrates that you are serious and often results in full payment being received.
If the debt has not been paid within the timeframe, we will contact you to obtain your next instruction. Generally, this will result in Court proceedings against the debtor. The Court in which we will lodge your claim, depends on the value of the debt we are seeking to recover. The monetary jurisdiction for each of the Western Australian Courts is as follows:
- Magistrates Court – Up to $75,000
- District Court – Up to $750,000
- Supreme Court – Unlimited
Where applicable, fees are recovered from the defendants, at the recoverable rates permissible under the rules of the Court. In the General Division of the Magistrates Court, if a debt is over $10,000, you are normally able to recover such of your Lawyer’s costs, as permitted by the Court scale, if you are successful with your claim.
A detailed look at the General Procedure Claim (GPC) process in the Magistrates Court of Western Australia, is below.
On your instruction we will lodge a General Procedure Claim with the Court, and organise for it to be served on the defendant (your debtor). Once the claim has been served, the defendant has 14 days to file a response with the Court.
At this point the defendant may admit to the debt, and we can organise the repayment in full, a repayment plan, or payment by Court enforcement procedures.
If the defendant ignores the claim, and does not file a response with the Court within the 14 days, we will apply for a Default Judgement. To do so we will need to lodge an Application for Default Judgment, a Certificate of Proof of Service, and an Affidavit of Service. If successful, we can proceed to enforce the judgment.
The third scenario will be that the defendant will notify the Court of their intention to defend the claim. At this point, we will have 14 days to lodge and serve your Statement of Claim, narrowing the issues in the dispute and revealing your case. This will include any relevant material facts, any necessary particulars (e.g. invoice details), the legal basis of your claim (e.g. breach of contract), and the remedy you are seeking. The defendant will have 14 days to file their Statement of Defence. If this is not received within the 14 days we can make an application for you to have a default judgment against the debtor, and if successful, proceed to enforce the judgment.
If the defendant lodges a statement of defence, we have 14 days to request a Registrar to list the case for a Pre-trial Conference. In this time, we may also choose to file a reply to the defendants Statement of Defence, if deemed necessary in the situation.
The Pre-trial Conference is a compulsory meeting between the parties and their solicitors before a Court Registrar. Your attendance will be required in most cases. The Court’s objective here is to provide a facility for the parties to negotiate a settlement, preventing the need for a trial. The Court will notify us once a date has been set for your Pre-trial Conference. At least 14 days prior, both parties must disclose documents relevant to the case, and provide a copy to the other side (Informal Disclosure). If a settlement is not reached at the pre-trial conference, the Registrar may list the matter for another pre-trial conference or a status conference, to enable the matter to be listed for a trial.
A Status Conference will take place in front of a Magistrate. It will address the management of a case, making any orders necessary to progress the matter to trial. This may involve witness statements, further particulars to case statements, discovery on oath, and interrogatories. Multiple status conferences may be required before the Magistrate lists the case for Trial.
At either conference, you will likely be given an opportunity to discuss settlement. This will take place with an independent third party (a mediator), whose role is to assist you and the defendant to identify and assess your options, and negotiate an agreement to resolve your dispute, without the need to go to trial. If you are unable to settle your case at mediation, a status conference will be listed in preparation for your case to proceed to trial.
At trial, each party will present their case and evidence, and witnesses will be examined and cross examined. The Magistrate will make his decision. If judgment is made in your favour, the Court rules provide a variety of procedures open to you to enforce the judgment, as detailed below.
The Court will conduct a Means Inquiry to determine your debtor’s ability to pay the debt, by asking questions about their financial situation, including income, assets and expenses. This may result in any of the below orders:
- Time for payment order – This requires the debtor to pay the debt in full immediately or on, or before, a date set by the Court.
- Instalment order – This requires the debtor to pay the debt by regular amounts set by the Court.
- Earnings appropriation order – This requires an employer, who pays the debtor, to pay a portion of those earnings to you. Before an earnings appropriation order can be issued, an instalment order must have been disobeyed and cancelled.
Property (seizure & sale) order
This authorises a bailiff to seize and sell as much of the debtor’s real or personal property as necessary to satisfy the debt wholly or partially.
Bankruptcy (Individual) / Winding Up (Company)
Debt appropriation order
If your debtor is owed money from a third party, this requires your debtor’s debtor to pay that amount to you, instead of your debtor.