[David Simons]

Hi Susan

You are correct in stating that a company ceases to exist when it has been deregistered. The Corporations Act actually says it ceases to exist – and the assets vest in ASIC. Don’t get excited about that last bit though. ASIC don’t pay creditors.

John is 100% correct.

However, re-instating a company can be an expensive process as it takes a Supreme Court application. Though the costs would probably end up on the property you would want to be comfortable that they can be paid in the end.

Sale of Land for Rates is another option. Make sure you notify ASIC when you are sending out your notices etc.

[David Simons]

Hi Guys

The High Court case of Sydney City Council v Garbett Pty Ltd (http://www.austlii.edu.au/au/cases/cth/HCA/1995/2.html) seems to say that it doesn’t matter whether or not the person received the rates notice (look at para 12) as long as council has served it in accordance with the Act. There are also other cases to do with service by post that say once it has been sent it is served whether or not it was received.

At the end of the day it’s the ratepayers responsibility to keep the address current.

As far as good customer service, well that’s another thing. But take care if you want to start sending rates notices to an address that was not provided by the ratepayer. One day you may have to justify where the address came from and prove it’s a good address. Make sure your method of service is within section 710.

Lastly, we advised one of our councils to affix it to the land (which was vacant) in accordance with section 710(2)(e).

All the best

David

[David Simons]

Hi Sue

Robert is correct.

Unfortunately, if you then want to sue the tenant for not complying you will need a name to have as a Defendant.

Regards

David

[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

[David Simons]

Hi Ann

Michelle is on the ball (though different mailing addresses would not be an issue).

Section 712(2) is relevant (All rates and charges payable by the same person, whether in respect of the same or of different land, may be recovered in a single action.):

http://www.austlii.edu.au/au/legis/nsw/consol_act/lga1993182/s712.html

Regards

David

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