In this series of posts we look at the concept of ‘enforcing
a payment’ within each respective State and Territory.
For an overview on enforcing payments click here.
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STEP 1:
Informal Communication
What is
this?
The more formal Steps 2 and 3 (Letter and potential Court action) could
be intimidating to the other party, so you should try to salvage the existing
relationship. As such, you should attempt to re-establish informal contact with
them by perhaps phone or email. We recommend this because at times, the unpaid
invoice could be a result of a simple oversight or misunderstanding, and a
phone call here could be a solution. If you are unsuccessful with this step, proceed
with Step 2.
STEP 2: Send
a Letter of Demand
What is a letter of demand?
Your
first call of action to chase up the money should be through a Letter of Demand. Essentially, this is a letter sent to the other party where you
formally notify them in writing, about the financial matter.
This letter
should include:
· An
outline of the dispute
· The
money outstanding
· The
defined period to settle the matter. If the specified time period passes with
no resolution, you will need to face legal action in court.
Things to Avoid
You should be able to form this
letter yourself, or you may also choose to seek advice from a legal
professional. If you choose do to it yourself, you must NOT:
· harass the other party, because they can
report it to government agencies or the police
· Attempt
to mimic a court document in an effort to raise the chances of payment. This
intimidation tactic is illegal.
Potential Outcomes of a Letter of Demand
After sending the letter, there are a few outcomes
which can result:
· They
might pay the full amount owed.
· They
could formally prove that no money is owed.
· You
and the other party may be able to negotiate a compromise, this could be in the
form of instalments or part payments.
· They
could ignore it or respond unsatisfactorily, in which case you will need to
progress to Step 2.
STEP 3: Small
Claims debt recovery action
What is it?
Basically,
this is a relatively informal local court action, which you can do yourself –
be self-represented. It is applicable to money, goods purchased/delivered,
labour or a combination of these. Within Queensland, within this method, the
maximum amount to be claimed is $25 000.
This small claims division is part of the minor civil disputes undertaken by
the Queensland Civil and Administrative Tribunal (QCAT), generally relating to
relatively minor issues. Many claimants, like yourself, choose to be
self-represented.
How to do it:
This
process has four sub-steps.
1.
You can attempt to negotiate for a settlement at
any point before the hearing. If no agreement is reached and the hearing date
arises, then you should proceed to court and obtain a favourable judgment.
2.
Before you can go to court, you will need to fill
out ‘Form03’, titled ‘Application for
minor civil dispute – minor debt’ as available from the QCAT website.
3.
At the hearing, both parties will present their
sides with relevant evidence, under oath. Then, the Referee will make a binding
decision.
4.
Once the favourable judgment is given to you, you
will need to recover the money. There are two options to go about this:
a.
Obtain a writ of execution against the
debtor’s property (i.e. a court order granted to obtain the funds from the
other party)
b.
Secure a garnishee order against their wages
or bank account (i.e. a court order requiring the other party’s employer to
withhold money from wages, then, the employer using those funds to repay you).
Still unsure of how to recover your money in Qld or need a lawyer to sign off on the Letter of Demand? Contact a LawPath consultant on 1800LAWPATH to learn more
