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Timboz

Active Member
9 September 2016
10
0
31
The SDRO just garnished all of the money in my account. However, almost all of $551 they took was actually bond money that was due to be paid to someone else. It was in my savings bank account, waiting to be paid to an outgoing subtenant.

Evidence:

- The amount in the savings account was the precise amount due to be paid to the fellow in bond

- I have numerous records of this amount being paid into and out of my account marked 'bond' to various people.

- I would swear a statutory declaration to this effect.

- I can show correspondence to the person whose money it is, talking about the money to be repaid.

I now live in Victoria

All of this happened because of an innocent oversight on my part: I got changed over from Austudy to Newstart and didn't realise that this resulted in the regular deductions to the SDRO stopping. But before that I was having deductions of $25 per fortnight for two years and never changed it.

I handle the rent and bill payments for everyone in the house

The money coming into my account consists of only:

- Centrelink payments (Newstart) - my only income
- Payments of 'kitty' from other flatmates, for bills
- Payments of rent

The rent payments all go to the landlord at the end of the month, and the kitty goes to bills.

I suffer depression and am currently on a 12-week medical certificate. I also have diabetes and have been on an intensive treatment program for it recently.

The bank already gave me back money that was 'on hold' waiting to be garnisheed, but I still need the other half back, because I need to pay this guy who actually owns that money.

Obviously the first step is to reinstate the regular deductions, explaining what happened, but then I really need to go hard to get that money back because:

- I don't feel it's just to take money that isn't even mine.

- It will financially cripple me if it isn't returned.

________________________________________
Questions:

* My researches indicate that garnishees can't apply to money held in trust, unless the trust itself is the debtor. This makes sense because it would be taking money that does not belong to the debtor. Surely under the same principle, I should be able to demand this money is returned because it is not actually mine?

* I would definitely be caused financial hardship if this money is not returned, because it could very well result in legal action against me. This fellow expects his bond to be returned soon.

* How would the 'saved' amount (under S 62 of the S.S Admin act) be calculated in my case?

That is:

- Do 'withdrawals' include money sent from my account on behalf of my flatmates?

- What does it include?

I have far more 'withdrawals' than I have payments from Centrelink, because of the fact that I'm handling the rent and bills ("No good deed goes unpunished").

So my 'saved amount' would be in the negative if these amounts were counted.

* Does anyone have any opinions as to how to get the money back?
 

Rob Legat - SBPL

Lawyer
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16 February 2017
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The problem is that it is already gone. In the case you referred to, it wasn’t yet taken. There’s also the issue of the exact mechanism used as to whether you have a right to challenge it at all or after the fact.

You’d also need to establish sufficiently to convince a court that the money was held on trust, which you seem sufficiently aware of.

For the time and effort involved, I’d say it’s not worth starting an action (if you could). Rather, try to plead your case to the SDRO. Liberally throw in the term hardship, and plead for mercy.
 

Timboz

Active Member
9 September 2016
10
0
31
Hi Rob -

thanks !

I thought that letting them know they had probably taken the money illegally would give them pause before refusing a refund.

I may not have the money but I do have the time and the willingness to take them to court.

Also, if I am outside their jurisdiction, maybe they might not want to press the issue - because it may turn out they have no jurisdiction to use their existing powers to come after me at all. They might have to get a court order. Given that I'm WILLING to pay it, why not refund what was already taken?


Furthermore, given the recent 4Corners special about the ATO's dodgy garnishee practices, I thought they might not like the publicity.

I'm a former journalist so I was considering contacting the relevant minister's press secretary to let them know what was likely to happen.

Here they are taking money off someone with a disability and taking money that doesn't even belong to that person, and refusing to refund - leaving me vulnerable to a legal action by the former subtenant.

1. How does the 'exact mechanism used' play a role?

2. Given that I live in Victoria now, if they took the money without a court order, do they even have the jurisdiction to do that?

When I call them I was going to ask them (once I have the existing garnishee stopped and return to the regular payments):

* Tell me the Act and section you are using to authorise you to do this
* Send me the paperwork for same
* Give me an email

3. Is there any way I can pressure them to provide me with this?

4. BTW I also found this case:

http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWSC/2015/92.html

5. NOTE: my bank already gave me back half the money, which makes me wonder if they have doubts the SDRO had the right to garnishee it.


I am then going to inform them that my doctor has said I have a 20% chance of a heart-attack and that I must avoid strength, and the fact (true:) that today as a result of this I've been experiencing chest pain and pain in my arm.

I will email this to them and I will CC it to the Herald newsdesk.
 

Timboz

Active Member
9 September 2016
10
0
31
If I was interested in taking them to court (or at least threatening to), who could I go to in the first instance?

Legal Aid? Financial Rights Legal Centre? Law Access?
 

Rob Legat - SBPL

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Firstly, be very careful throwing around the term “illegally” – especially if you’re wanting someone to agree with your point of view. And if it’s with the SDRO, I doubt there’s an opportunity to argue you don’t owe the money (as that time is likely passed). I also think you’ll find they have legislative power to impose the garnishee, at an educated guess.

You also need to consider that they didn’t know the money in your account was meant for someone else. You say it was held on trust, but I don’t see anything in your information that could have alerted anyone to that fact.

In answer to your specific questions:

1. I’m not familiar with the specific powers they use to take out a garnishee. If it’s been ordered/checked by a court at any stage, or if you received prior notice that it was going to take place, you might find you have little avenue of appeal.

2. I don’t know, not my area. However, I would suspect the answer is yes. Banking is federally regulated in any case, and there’s a high likelihood that your ‘domicile’ for banking is still listed as NSW – not that I think that would ultimately make a difference, but it may.

3. I wouldn’t suggest pressure at all. I would suggest civil, respectful requesting. Also be aware that they make get a lot of these types of requests.

4. Sorry, I don’t have time to review a case at the moment.

5. I don’t think you can like the two at all, at least without further information.

Lastly, I suggest you try Legal Aid first.
 

Timboz

Active Member
9 September 2016
10
0
31
The reason I bring up jurisdiction is because:

- My account definitely has a Vic address now.

- Apparently the SDRO can garnishee the money without a court order, which would surely mean via legislation, which I assume must be confined to that jurisdiction (eg. Division 3 of the Civil Procedure Act, as stated here by the NSW District Court in relation to garnishees).

I don't understand what you mean by:

"I don’t think you can like the two at all, at least without further information."

Like the two?
 

Timboz

Active Member
9 September 2016
10
0
31
Here is the power conferred on the Commissioner under the Fines Act, and it refers to the Civil Procedure Act:

FINES ACT 1996 - SECT 73 Order to garnishee debts, wages or salary of fine defaulter

Intuitively I would expect to argue not that the garnishee itself was wrong, but that the garnishee was not correctly executed, since it attacked funds belonging to someone else, in trust.

In other words, the garnishee was not legally executed.
 

Rob Legat - SBPL

Lawyer
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16 February 2017
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Gold Coast, Queensland
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Sorry, typo - "link" not "like".