[Ann Crowe]

Hi Rps,
On a previous occasion when the Local Court Registrar issued a Court Instalment Order for a HOPELESSLY inadequate amount, Council lodged an objection. However, the order was upheld and Council were told that we could not have access to the supporting documents produced by the judgement debtor as it was “a matter for the court”. This debtor is still plugging away with the CIO, but of course while the judgement debt is being paid off via this order, more and more overdue rates are accruing.
On another matter, the registrar has returned a Form of Examination to our debt recovery agency which is not filled in correctly. For example, Question 8. “What real estate to you own, what is it’s address and market value and what value of mortgages or charges remain outstanding against it? Answer: “Home address”. Question 9. “Do you own or are you purchasing a motor vehicle? If so, detail the make model, current market value, registration, encumbrances (if any) and balance of any outstanding loan?” Answer: 2005 Holden Rodeo 4X4 4 door ute”. Another example is Question 18.”What amount do you contribute to the regular expenses of running your household?” Answer: “Total”. Several more of the questions which required specifics were answered in the same vein. A copy of the form was returned to our debt recovery agency with a proposal from the judgement debtor to pay $150 per week. No copies of backup documentation, bank statements, pay slips were attached. I don’t know if the Registrar sighted those or not. When I emailed our debt recovery agency the response I received was: “Unfortunately we cannot enforce the debtors to provide the proof as per below as the registrar will not do so but our agents (Carters) do request these at the time of the hearing”.
This current matter is not the subject of a CIO – the form was simply returned with a repayment proposal from the debtor. I believe if I pursue it that I will end up with a CIO for the same, or even less repayments.
This has been a recurring problem with our Local Court. Incomplete or incorrectly completed forms and inadequate repayment arrangements. My question is, are there any steps Council can take (short of attending each hearing ourselves) to ensure that the Court process is being followed correctly – that the forms are completed and supporting documentation is provided? Is Council entitled to access to the supporting documentation? If someone turns up to a hearing without the correct docs – ís it up to the registrar to accept or should the registrar be ensuring the debtor produces the required docs and set another hearing date? And what’s the go with being “shut down” and told it is a matter for the court when I query any of the above (even before lodging an objection to an order)? Any and all advice appreciated. Thanks, Ann

[John Towers]

Hi Ann,

You should raise your concerns with the Attorney General’s Dept & see whether they will provide any assistance. After all the Court comes under their jurisdiction.

As for the first matter you can always commence a new action for any R&C’s outstanding since the first judgement etc was entered.

JT

[David Simons]

Hi Ann

I will try and answer your queries one at a time.

1. The Court instalment order. There is very little guidance from higher courts about how instalment applications are to be dealt with. The reason is obvious – if the debtor can’t afford payment of the judgment debt then both the debtor and creditor are unlikely to appeal a dubious decision to a higher court. There is a case that says if the instalments won’t even cover the interest accruing then the order shouldn’t be made. I have heard different stories about “rules of thumb” of one year or two years – though I haven’t seen a ridiculous one made for a long time. Other than that, it is hard to comment without seeing the application (affidavit in support) and knowing details of the judgment amount and instalments ordered. Please note that if they are late (even by one day) the instalment ceases to take effect immediatley. Please also note that if the Registrar made the initial order you have a right to review the decision before a Magistrate. Lastly, it’s possible the order was made by the Registrar without a hearing (as in, you were just sent a notice) – if that was the case you have fourteen days to have the matter listed if you want to object.

2. The incomplete examination form. I am assuming that this is an Examination Notice that has to be served before you are able to proceed to an Examination Order. UCPR 38.8 deals with the right to proceed to an Examination Order (http://www.austlii.edu.au/au/legis/nsw/consol_reg/ucpr2005305/s38.3.html). It says that if they have not returned the Examination Notice with the information OR they have returned it but the information is insufficient OR they have not provided documents called for you can proceed with the Examination Order. In other words, if they come under that section you can ignore the response and proceed to an Examination Order. Having said that, my advice would be to write to them to give them a chance to do the right thing before issuing the Examination Order.

3. The secretive Court. This is most extraordinary. Subject to very limited circumstances, you should be entitled to see any documents that were taken into consideration by the Court in coming to their decision. To not do so can be a denial of natural justice and can lead to an appeal.

4. The appearance without correct documents etc. At the end of the day, the Registrar is able to run the Court how they like (though you do have the right to review their decisions). In my experience, more often than not if a debtor turns up without the proper paperwork the matter should be adjourned (and you should also get a costs order) so the debtor can appear next time with the correct documents. It may assist if you have your representative confirm with the debtor prior to the listing precisely what they have to bring.

Lastly, you should maybe consider using another Court? You are able to commence proceedings in any Court in the State (though someone defending may be able to transfer them back to their nearest Court). I note that you are probably using the Court in town for political reasons so it may be difficult to convince the ones above that you should switch.

I would be the first to tell you that the system is not perfect for the creditor but I hope the above assists.

Regards

David

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