A Statement of Claim is generally filed to demand payment of monies owing. The Defendant in these matters is usually required to file and serve his/her/its Defence to the Statement of Claim within 28 days (after the Statement of Claim is served).

In the event that the Defendant does not file a Defence then the Plaintiff can make an application for Default Judgement against the Defendant (when no action is taken within 28 days).

Alternatively if the matter is contested then an evidentiary timetable is usually entered into in which both parties file and serve all evidence (expert and lay evidence) on which they intend to rely. The matter then proceeds by way of Directions of the Court, this can often lead to Mediation Orders being made and if no agreement can be reached then the Court must Hear and decide these matters.

Once Judgment is entered, a number of procedures are available to enforce that Judgment against the Defendant.

At Curtis Gant Betts our lawyers can assist you with Writs (seizure of goods to sell in order to repay the debt), Examination Summons (requiring the debtor to attend Court to display how they will satisfy the Judgement), and Garnishee Orders (whereby the Court can order a third party to pay money to a creditor instead of a debtor).

If an individual is declared bankrupt by the Courts, a Trustee is appointed to take control of the insolvent person’s estate in order to turn the assets into cash to distribute equally among unsecured creditors (those who do not hold security for payment of the debt). Secured creditors may commence debt recovery by disposing of the asset securing the loan (e.g. a bank would do this if mortgage payments are not made on a house). Bankruptcy proceedings are handled in either the Federal Court or the Federal Circuit Court, depending on the complexity.

Insolvency is when a company is declared insolvent the Court has the power to ‘wind it up’ and appoint a Liquidator, whose responsibility is to turn the assets into cash and distribute it in the order set out in the Corporations Act. The creditor and the liquidator firstly recover their costs, followed by certain entitlements to employees. The balance is distributed among unsecured creditors. Winding up proceedings are handled in either the Supreme Court or the Federal Court.

Curtis Gant Betts can assist you by filing an Originating Process. If the Court is satisfied that the company is trading insolvent, it can then appoint a liquidator.