recovering debt

Common commercial disputes that we assist with include:

  • Breach of contract
  • Debt recovery
  • Breaches of Australian Consumer Law
  • Misleading and deceptive conduct
  • Employment matters such as unfair dismissal
  • Tenancy Disputes both residential and commercial
  • Building and construction disputes
  • Partnership and shareholder disputes
  • Product liability
  • Defamation

How we resolve commercial disputes?

Generally, we encourage our clients to negotiate and resolve their dispute through negotiations without Court involvement. This is because initiating Court proceedings is costly, time-consuming and results are not always guaranteed.

We ensure that we take detailed instructions from you and obtain all the documents and evidence relevant to your dispute.

We engage in a process called discovery to obtain all relevant documents to the dispute from the opposing party to inform us of the strength of your case and that of the other side.

When disputes cannot be resolved through negotiations, initiating Court proceedings is necessary to enforce your rights and we can provide Court representation.

If Court proceedings become necessary, we will advise you on the various costs and risks involved so that you can make an informed decision.

The discovery process makes this easier, and we can generally get a good idea of your prospects of success and whether Court proceedings are commercially viable through discovery.

We have experience in all jurisdictions including the Victorian Civil and Administrative Tribunal (VCAT); the Magistrates’ Court; County Court of Victoria; and the Supreme Court of Victoria.

Debt Recovery

If you are owed money and have failed to recover a debt, you may need a lawyer to help you recover the debt.

A letter from a lawyer demanding payment of a debt carries more weight because a lawyer can threaten the debtor with legal action if payment is not made. A debt collection agency will not have the capacity to threaten legal action.

Receiving a letter from a lawyer demanding debt can be quite daunting and this helps prompt the debtor to pay quickly. A lawyer can sometimes help you recover some of your legal costs in pursuing the debt, this is a significant advantage that a debt collector cannot offer.

What are the debt recovery processes?  

STEP 1 – Letter of demand

We send a letter of demand to the debtor; in this letter we explain to the debtor:

  • That they owe you money
  • How much money they owe?
  • Set a date for them to pay you back
  • A threat of legal action if they do not pay the money back by the stipulated due date

What happens next….

  • The debtor may pay you back
  • The debtor may deny the debt, claiming they do not owe you the money
  • The debtor may want further evidence of the debt, for that reason invoices and written fee agreements are so important
  • The debtor may want to negotiate a reduction in the debt or want a flexible payment plan

STEP 2 – Responding to the Debtor

If the debtor denies the debt or wants more proof, we provide the evidence of the debt through invoices, communications etc. We will ask you for these documents when you engage our services and will attach them to the letter of demand if they are available.

Sometimes, people have verbal agreements and there are no receipts or documentation that can detail the debt. This does make our job a little more difficult, however any written correspondence such as text messages or emails can help us prove the debt exists.

If the debtor wants to negotiate the debt, we will inform you of what they are offering and obtain your instructions on what you would like to do next.

STEP 3 – Recovering the debt through Court

If an agreement to settle the debt is not reached or if the debtor just refuses to pay, we then start proceedings in the relevant Court or Tribunal to enforce payment of the debt.

How does the Court recover your debt?

The relevant Court will help you recover your money by exercising one of the following:

  • Seizing the debtor’s property and having them sold at auction
  • Garnishee order, this is where a percentage of the debtor’s wages are given to you
  • Bankruptcy/winding up proceedings
  • Summons

 

CONSUMER LAW

When you buy goods or services, as a consumer you have certain rights under Australian Consumer Law (ACL) contained within Schedule 2 of the Competition and Consumer Act 2010 (Cth).

If you experience an issue with a good or service, the best thing to do is to contact the business you purchased the product from and explain the issue to them.

If the business does not help resolve the issue or offer a refund or replacement, it may be necessary for you to lodge a complaint with the relevant authorities.

In Victoria, this will usually be Consumer Affairs Victoria.

We can assist consumers with a range of issues, including:

  • Misleading and deceptive conduct
  • Unfair terms in contracts
  • Defective goods
  • Services not performed with due care and skill
  • Goods or services not corresponding with their description or to any promises

Definition of Consumer

A person or a business is considered a consumer if:

  • They purchase goods or services that cost less than $40,000.00
  • The goods or services cost more than $40,000.00, but they are a kind ordinarily purchased for domestic, household, or personal use. (for example, a luxury car)
  • The goods are a commercial road vehicle or trailer used primarily to transport goods on public roads

Consumer Guarantees applying to Goods

The goods must be:

  • Safe
  • Work correctly
  • Correspond with any description or promise about their condition, performance, or quality
  • Fit for purpose

Consumer Guarantees applying to Services

The services must:

  • Be provided with due care and skill
  • Be provided within a reasonable time or within a specified time
  • Provide the agreed results
  • Be fit for any specified purpose (express or implied)

What happens if the Consumer Guarantees are not met?

You are entitled to either a:

  • Repair
  • Replacement
  • Refund
  • Compensation for any consequential losses (this depends on specific circumstances)
  • Termination of contract for services

Usually, if the issue is minor, the seller can resolve the problem with either a replacement, repair, or refund.

If the problem is major or cannot be fixed, a consumer can:

  • Reject the goods and obtain a full refund or replacement; or
  • Keep the goods and seek compensation for the reduced value of the goods
  • Terminate the contract

What constitutes a major problem?

When the good or service:

  • Has a problem that would have prevented someone from buying it if they had known about it
  • Is significantly different from its sample or description
  • Is unfit for its purpose and cannot be fixed in a reasonable time; or
  • Is unsafe

How do we help you if you experience issues with a good or service?

To assist consumers who have experienced problems with a good or service, we usually take the following course of action:

  1. We obtain detailed instructions on what the problem is with the good or service
  2. Review any contracts or previous communications you have had with the business in relation to the product (if you do not have access to these, we will request it from the business)
  3. Identify breaches of any Australian Consumer Law provisions or other relevant legislation
  4. Identify any promises or product descriptions in relation to the good or service that were not met
  5. Contact the business directly on your behalf and:
    • Detail the issues with the good or service
    • Alert them of breaches of any relevant laws and promises made by them
    • Specify a course of action to resolve the issue based on your instructions
    • Threaten legal action against them if they do not resolve the issue
  1. As a last resort, if the business fails to comply and does not resolve the issue, we issue proceedings in the relevant Court or Tribunal to enforce your rights as a consumer.

Some common issues we help clients with include:

  • Disputes with builders
  • Disputes with real estate agents
  • Disputes with motor car dealers for defective vehicles

Disputes with financial institutions involving loan contracts

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