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How to Enforce a Payment in NSW (2019 Update)

How to Enforce a Payment in NSW (2019 Update)

We look at the concept of ‘enforcing a payment’ within each respective State and Territory. Read below for a snapshot of New South Wales.

20th February 2019

Find out how to enforce a payment in New South Wales. For an overview on enforcing payments in each Australian state and territory, check out our previous guide.

Step 1: Pick up the phone

Often an outstanding payment may have been the result of an oversight and can be resolved by a simple conversation. Before considering any legal actions, make sure to contact your client to ask about the unpaid invoice directly. This is an important first step, as you can avoid legal escalation and reclaim your money. However, if this approach is unsuccessful, you can try Step 2 below.

Step 2: Send a letter of demand

Put simply, a Letter of Demand is a letter that you can send to the other party (i.e. the client) in attempt to force them to pay an outstanding amount of money. It is something you can create on your own, or you can seek the assistance of a legal professional.

A letter of demand should:

  • Explain to the other party (i.e the client) the dispute;
  • specify the money owing; and
  • set out a defined period of time in which they must resolve the dispute, or face legal action.

Several outcomes may arise once the other party has received the letter. Ideally they pay the full amount owing and you can move on with business as usual. However the other party may; try to negotiate a compromise (i.e. ask to pay in instalments); contest that they owe the money; or simply ignore the letter.

Despite your best letter writing skills, a Letter of Demand may not result in your desired outcome, and you might need to proceed to Step 3.

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Step 3: Seek debt recovery in court

If you’ve exhausted the first and second steps without any success, it might be time to commence legal action in the Local Court. Don’t be put off by the thought of expensive and lengthy court proceedings. Recovery of a debt in the small claims division of a Local Court is a ‘do-it-yourself’ course of legal action. It’s relatively informal and the amount of costs payable to the court if you’re unsuccessful is limited.

What is a small claim?

A small claim must relate to money, goods purchased or delivered, labour, or a combination of these. The amount of the claim must be less than $10,000. If your claim is over $10,000 you will have to go through the general division of the Local Court. Claims above $100,000 begin in the District or Supreme Courts.

How does it work?

There are two-steps in the debt recovery process:

1. Once you have taken the matter to the Local Court, you and the other the party must attend a ‘pre-trial review’ with the aim of settling the matter without the need of setting a hearing date. If an agreement cannot be reached, the court will then hear your case and if you’re successful, the court will award a judgement in your favour.

2. The money must then be recovered from the other party. This will often involve taking enforcement action such as obtaining a writ of execution against the other party’s property or securing a garnishee order against the other party’s wages or bank account – essentially a certain amount of money taken out of the other party’s wage or bank account on a weekly basis.

It’s important to note that the case study above was specific to New South Wales, but the good news is that the process is fairly similar across Australia. For more information visit your specific state or territory local court website.

Still unsure of how to recover your money in NSW or need a lawyer to sign off on the Letter of Demand? Contact a LawPath consultant on 1800 529 728 to learn more.

Author
Anthony Fong
Anthony Fong

Anthony is a Paralegal at Lawpath. Pursuing his interest for Insolvency and Commercial Law, he is currently completing his third year of a combined degree in a Bachelor of Laws/Bachelor of Commerce at University of New South Wales.