QLD Fraudlent Affidavit over court case to recover debt

[jen84]

Hello,
I have a slightly odd case that I am needing some help with.
I enrolled my boys into a private school, at the time I was using the boys child support to cover the school fees. The boys father then stopped paying child support and I fell behind in school fees. I was offered by the school to fill out compensation forms to apply to see if I could get discounted school fees. At the start I said I wanted to do the right thing and not ask for a handout and pay the school fees and set up a payment plan to get on top of the fees. My health then deteriorated and I had some big medical bills with specialist. I emailed the School to let them know, and asked if we could apply for a scholarship for one of my sons as he was in some top sports team and representing the school in most sports. for 3 months we jumped through hoops to for the scholarship just to be told they don't offer scholarships anymore. I then asked to complete the compensation application and they said no that offer was no longer on the table. I offered to become a set up and run sports programs at the school, work in the office for free, fundraising etc. All my requests were ignored. after a year and trying to pay fees as I could, I emailed the school to tell them I would be removing the children as I couldn't afford it anymore. They demanded the $10k owing on the spot. I said I'm leaving during to financial hardship and offered to pay them $150 a fortnight (which was more than I could afford) and they refused the payment plan. They took the matter to court with out my knowledge. They have an affidavit to say I was severed papers, however the affidavit is fraudulent. As I was not home at the time the papers were apparently served, I was out to dinner for my birthday and have proof. We now have a judgment on our file for $12k as they have added their legal fees on top of the school fees. They have also put this judgment on my boyfriends file and he is not the children's father. We aren't even married, but he did sign the school paper work, which we have which found out, he can't sign any school or medical legal documents. We only found out about the judgment on our file when my boyfriend tried to refinance his unit, to help us get on top of some debts. We have spoken to the courts and got a copy of the affidavit, we put in a form 55 to have the judgment set aside and case re-heard and the judges through it out and said he has an affidavit to say I was served the papers and I should of turned up the first time.
I have taken the fraudulent affidavit to the police and they said there is nothing they can do. And many lawyers I have rang have said they can't help. I found one who will simply send a letter to the school to ask for them to consent to having the judgment removed in return for a payment plan and deed. but the school could reject this and it will cost me $4k all up, which is just adding to my debt. We are needing the judgment off our file, or at least my boyfriends file so he can re-finance and we can get on top and clear out debts. and a payment plan set up.
I have emailed the school on many occasions about doing this and all my correspondence is ignored and never replied too.
Any suggestions on how I proceed and have this matter sorted out, off our file and onto a payment plan?

 

[Docupedia]

Setting aside a judgment is not an easy undertaking. It is able to be done, but you'll have to provide sufficient evidence of what has gone wrong. If the affidavit of service of the original claim is by a bailiff, you'll have almost no hope. If it's by a process server/mercantile agent/solicitor - very difficult. Anyone else, more chance but possibly still difficult. The affidavit needs to say how the claim was served, the date of service, and possibly the time - review that and look for errors and holes you can prove.

Also be aware that getting judgment set aside doesn't get you out of trouble - it just puts you in the position where you need to argue your case.

In terms of the credit file listing - the school can't lift it even if they wanted to. Judgment listings are automatically collected by the credit reporting bodies from the courts. To get it removed you'd have to prove that it shouldn't be there in the first place (such as by getting it set aside). There is a positive obligation for listings to be correct and not misleading; and that includes removals.

 

[jen84]

Thank you for your reply, this is all information I know, I have spoken to many solicitors.
the affidavit was by a process server and I have evidence it’s fake as I was out to dinner at the time he said he served me, and I have evidence of that. The processes server also gave a fake address of residence. And stated he knower on the door and asked my name and I replied with my full name including my middle name and last name. Lol. It’s completely fake.
the fact is I never got to have my case heard as the papers were never served. We were in financial hardship and a payment plan was offered.
What I’m looking for is advice on how I get this heard again, and judgment removed and payment plan in place. And the fraudulent affidavit delt with.

 

[Docupedia]

You make an application to set aside judgment to the court that gave that judgment, and roll the dice that the court accepts your proof.

However, if your only ‘defence’ is to argue for a payment plan it may all be pointless. You can’t force the school to accept a payment plan. They may simply push forward for judgment anyway, and then talk payment plan - putting you in the same boat you’re currently in. The benefit to them doing that, for them, is they don’t run the risk of argument about what is owed or how much down the track, it’s easier to enforce (they don’t need to go through court again), and they can charge interest on the judgment amount at the statutory rate.

 

[Rod]

You can’t force the school to accept a payment plan.

But the court can.

Apply for the rehearing, if the $10K is owed, admit it, then ask for a court ordered payment plan. Ask to have the costs taken off if you prove the affidavit is false.