SUCCESS LAW Levy Recovery Presentation by Liat Walker, Managing Director 10 September 2011
GOVERNING LEGISLATION Levy recovery action must be undertaken in accordance with the various module Regulations of the Body Corporate and Community Management Act 1997 Uniform Civil Procedure Rules ( UCPR ) Rules of the court with respect to court proceedings
REGULATIONS s.145 (2) of the Standard Module Regulations 2008 state that: If the amount of a contribution or contribution instalment has been outstanding for 2 years, the body corporate must, within 2 months from the end of the 2 year period, start proceedings to recover the amount.
REGULATIONS However a BC can commence recovery action before this time s.145(1)(c) allows a body corporate to recover any costs (recovery costs) reasonably incurred by the body corporate in recovering the amount
LEVY RECOVERY PROCESS AND TIME FRAMES Letters of Demand( LOD ) 7/14/21 days Claim and Statement of Claim 28 days Service of court documents 14 to 70 days If a Defence is filed 60 days Judgment 7/14 days Enforcement Warrant Seizure and Sale 7/14 days Registration of Writ 7/14 days Bailiff Sale 2/3 months
SEARCHES PRIOR TO LOD S Title search to confirm correct owner and spelling of name/s Company search confirm that the company has not been deregistered/ liquidation/ receivership. Names of all directors. Principal place of Business Registered office.
LOD S 7 days/14 days/21 days Time for payment of Letters of Demand must be seen as being fair and reasonable by the Courts
LOD S SENT TO Individuals - The person/s on the BC Roll - The person/s on title Companies - Registered Office/Principal Place of Business - All directors - To address as noted on the BC Roll
RESPONSES TO LETTERS OF DEMAND Receive full payment Receive part payment Receive no payment Telephone call to advise on circumstances and grievances Request to enter into a repayment plan
PREPARATION AND FILING OF CLAIM AND STATEMENT OF CLAIM( C&S/C ) Details must be correct and as noted on the Title Search (this may differ from what is on the BC Roll) May only claim for outstanding levies/costs and penalty interest up to the day of filing Once C & S/C has been served, fresh proceedings need to be issued for further levies which may become due and payable
SERVICE OF COURT DOCUMENTS Individuals Must be served personally (unless otherwise ordered by the Court or another Act) Court documents may be left with an adult who also resides at a debtor s place of residence and who undertakes to bring the documents to the attention of the debtor Court documents may be served at a person s place of employment but must be served personally
SERVICE OF COURT DOCUMENTS Company By post in accordance with the Corporations Act 2001 (Cth) There are specific hours during which documents may be served (7:00am to 7:00pm all days except Good Friday and Christmas Day)
PROBLEMS ENCOUNTERED IN SERVING PROCESS Debtor evading service (i.e. by saying they are not the debtor) Refusing to answer the door Debtor becomes aggravated/violent Debtor has moved
UNABLE TO SERVE PROCESS LOCATION AND SEARCH ENQUIRIES Database searches and enquiries Information on the BC Roll - (work places)/phone nos/faxes/email Information from neighbours/ Onsite Manager/ BC Committee
WHY CAN T EVERYONE Lack of information BE FOUND? No records exist in relation to the person (i.e.they hide the information or lie or are professional debt evaders) Not on Electoral Roll Records exist but are not updated (i.e. subject uses post office boxes or never updates addresses)
INFORMATION CANNOT BE OBTAINED FROM Police records (licence, criminal history etc) Tax records and government benefits (Centrelink, pension etc) Banking details Private investments Health records (i.e. Medicare details, health histories)
SUBSTITUTED SERVICE OF COURT DOCUMENTS Application Supporting Affidavit (must demonstrate all possible attempts to effect personal service) Order
WHAT HAPPENS ONCE A C & S/C HAS BEEN SERVED The abusive call The hysterical call other owner not aware The How Dare You call The Those Mongrels call e.g. BCM s Alternatively we receive the following A Defence to the proceedings A Defence and Counterclaim
PROTRACTION OF A MATTER When service has been difficult or not possible When a Claim is defended by the debtor Lawyers acting for a debtor wanting particulars of a debt/all documentary evidence and other supporting information/addressing debtor s issues Defences filed for delay purposes and to unnecessarily protract the proceedings
SUMMARY JUDGMENT AND RECOVERY COST Date & time set down for hearing Application for Summary Judgment Supporting Affidavit Submissions Judgment order Indemnity costs/standard costs
DEFAULT JUDGMENT If no payment received or only part payment received No hearing required Application for Default Judgment Affidavit of Debt Judgment Order
ENFORCEMENT WARRANT SEIZURE AND SALE OF PROPERTY (on amount of claim or any outstanding balance) Application Supporting Affidavit Enforcement Warrant Copy of the Enforcement Warrant forwarded to the debtor
REQUEST TO REGISTER WRIT Ensure correct signing, dating and witnessing instructions provided Lodgment with Department of Environment and Resource Management ( DERM ) Copy of Registration Confirmation Statement sent to debtor and mortgagee (if applicable)
BAILIFF SALE Bailiff sales are conducted in the court rooms by the Court Bailiff and a Registrar or Deputy Registrar or a Magistrate Prior to a Bailiff Auction, the Bailiff serves several notices on the debtor advising of the sale of the property and the auction date and time The Bailiff must advertise the Auction (commonly not less than 6 weeks) in two local newspapers
BAILIFF SALE The Bailiff requires a security fee of approximately $2,600.00 Bailiff Contract not the same as an REIQ Contract (i.e. 24/48 hour payment) Purchaser becomes liable for all debts pertaining to the property (i.e. mortgage/rates/interest & levies (only))
PAYMENT RECEIVED FROM DEBTOR Nothing prevents the debtor from turning up at court on the day of the Auction and attending to payment of the Enforcement Warrant debt which results in the Auction not proceeding
RULES TO PROTECT B/C Do not speak with the debtor once the matter is in collection and particularly when court proceedings have been issued, as you may unknowingly compromise a BC s position by doing so Do not contact a third person to discuss matters relating to a debtor (i.e. family/friend/real estate agent) If you are asked by a debtor to deal with someone other than the debtor themselves, ensure you get written authority from the debtor to do this verbal authorisation is not enough Work with and seek guidance from your BC Manager
Liat Walker, Managing Director P (07) 3034 8900 F (07) 3034 8989 E info@successlaw.com.au PO Box 1442 Milton BC Qld 4064 www.successlaw.com.au