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WA False and Incorrect Identification in Writ - Any Recourse?

Discussion in 'Other/General Law Forum' started by hello, 5 December 2014.

  1. hello

    hello Active Member

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    Hello,

    My brother received a nasty surprise over a year ago, a Bailiff turned up to his house to repossess various items. My brother had not received any correspondence whatsoever, no summonses, no demand notices absolutely nothing. He contacted the Bailiff & then the Lawyer who had put the writ on him.

    It turned out that the lawyer had done a White pages or google search found someone with the same name as the person who owed her client the money and then got a repossession notice all without any contact at all with my brother. He has managed to get a retraction letter from her but so far she will not remove the writ and this is impacting on our family business.

    Every time we ask for finance, fill in a credit application or other very common business transactions we have to explain to them why the writ is on his credit rating history and provide the letter. One business refused my sister in law personal credit due to the false claim made by this lawyer, thankfully the business transactions thus far have not been refused.

    Is there anything that can be done to force this lawyer, due to her shoddy workmanship, to clear my brother's credit history?

    Regards.
     
  2. Sarah J

    Sarah J Well-Known Member

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    1. Is the writ still in force? Has your brother paid the outstanding debt?
    2. Is the enforcement order removed?
    3. The writ usually does not expire until after 12 months. At anytime during these 12 months, the creditor can serve (deliver) the writ to your brother. Even though the first service was not properly made and should be set aside, now that the creditor knows where your brother lives, the creditor can serve your brother properly at anytime before the expiry of the writ. If the writ expires, the creditor can always ask the court for an extension or re-issue the writ. Hence, to "remove" it, it looks like your brother will need to satisfy the debt or dispute it.
     
  3. hello

    hello Active Member

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    Hello Sarah
    The point is that the writ should never have been issued to my brother, it was a case of extremely slack casework by the lawyer. She literally did either a white pages or a google search and found someone with the same name and thought she would put a writ on him to see if it was the person she was looking for. My brother does not & has never owe the monies in question, has disputed it and had the enforcement order removed but the lawyer will not clear the record.
    Regards
    Roz
     
  4. Rod

    Rod Well-Known Member

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    Write to the lawyer, preferably registered mail and email, and say they will be responsible for all costs your brother incurs, including legal fees and other damages etc, unless they do {list here} within 'x' days to clear your brother's name.

    Throw in a catch all clause that says if any future issues arise as a direct result of this person's behaviour they will be responsible for also fixing it at the time it becomes known to your brother.

    They caused the mess, they are responsible for fixing it. The letter/email is important and puts the lawyer on notice and increases the chance getting a court order for costs against this person.
     
  5. hello

    hello Active Member

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    Thanks Rod, we have tried this via email/phone calls but she says legally she is not obliged to fix the mess she created. She freely acknowledges that her actions were incorrect, but says that it's my brothers job to contact all credit rating agencies etc and get them to clear this from his record. We also contacted the board in Western Australia who just sent a generic letter saying they really couldn't do anything. Can you or anyone else tell me where to research the section of the law that would cover this area?
     
  6. Rod

    Rod Well-Known Member

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    This is why registered letter is needed. as well as the email. Needs to be a formal letter that also says she fixes or you go to court for costs and damages.

    Not sure of the law ( I'm not a lawyer :) ), but suspect it is one of the common law torts, possibly 'negligence'.

    You can/should also write to the person/creditor that hired the lawyer and explain they may be sued as being 'vicarious liable' for the actions of their agent unless the matter is resolved to 'your absolute satisfaction'.
     
  7. hello

    hello Active Member

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    Thanks that's brilliant... I'll try this & let you know how it goes.
     
  8. Rod

    Rod Well-Known Member

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    Typo. Should be: 'vicariously liable'

    Also, your brother must do what he can to mitigate his losses, not just sit back and do nothing. Hope this helps.
     
    hello likes this.
  9. Sarah J

    Sarah J Well-Known Member

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    Who is the creditor (client of the lawyer)? If they are a financial institution, you could contact the Financial Ombudsman Services and ask that they assist you in getting the creditor to remove the bad credit mark against your brother's name. If it's a telecommunications company, you can contact the Telecommunications Industry Ombudsman.

    Agree with Rod, if it was the lawyer's fault for not accurately identifying the correct debtor, there may be a case in negligence. Your brother should first look into filing a complaint against the lawyer. Perhaps you can include that in your letter of demand to the lawyer with the Law Society as one of the consequences of the lawyer not cleaning up this mess.

    But first, be absolutely clear that your brother is not the debtor in question and that this was a case of mistaken identity.
     

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