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QLD Steps after Default Judgement

Discussion in 'Commercial Law Forum' started by NotABabe, 19 June 2017.

  1. NotABabe

    NotABabe Active Member

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    Hi,
    We (Plaintiff) are in a process of money dispute in Magistrates court, the other party did not file their defense within 28 days and we are about to request for a default judgement. I just have a few questions about what steps to take after the judgement is given. The case is quite simple, the other party didn't pay the invoices. My questions are:
    1. What's the first step after a judgement is granted? Do we still need to fill out the form 58 to register the default judgement?
    2. Do we need to request the court to give a money order, or register an order?
    3. The other party is a national company, is an enforcement hearing necessary?
    4. The other party is a cleaning contractor to many companies. If we need to apply for an enforcement warrant, and we know who they are contracting to, which warrant should we apply? (Redirection of debt or redirection of earnings)
    5. Is there more efficient way to get them to pay the debt after the default judgement?

    Thank you in advance for your precious time!
     
  2. Rob Legat - SBPL

    LawTap Verified Lawyer

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    1a. Commonly the first step is to seek an enforcement hearing, as a means of finding out information about the ways to pursue enforcement.

    1b. To seek a judgment you'll need to prepare a Form 25 Request for Default Judgment, a Form 26 Default Judgment, and an affidavit of debt to show how much is currently owed.

    2. That's what you're doing by lodging the documents in 1b.

    3. An enforcement hearing in never 'necessary', but the initial steps of one (at least) are usually a good idea. You can't seek an enforcement hearing without first sending the judgment debtor a Form 71 and giving them an opportunity to respond. Doing this is a good way to get some information to inform further proceedings.

    4. With a company, I would always suggest a redirection of debt to their bank - after first ascertaining their correct bank details.

    5. Whatever works in the circumstances. If they're playing hardball, you can look at a statutory demand under the Corporations Act. Failure to comply with one of those is grounds to seek a winding up order against the company - something which they will definitely want to avoid from the information you've given.
     
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  3. NotABabe

    NotABabe Active Member

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    Thank you Rob.
    It has been over a week since we filed the request of default judgement. We had not received anything from the court so we contacted the court house this afternoon and received an unfortunate news. Our request of default judgement was received by the court on 20th June (I went in to lodge at the counter), one of the defendant "emailed" the court their intention to defend on 21st. The court decided to accept their paper as our request was still "in tray YET to be processed". Even though their deadline to file their paper was on 19th, we filed the request of default judgement on 20th, they emailed the court on 21st, the court did not receive the formal paper on 26th, at the end the court still decided to accept their paper.

    How frustrating. How is this legal. We followed the procedure did everything by text book and this is what we get. When the defendants owed us a large amount of money, not paying invoices, it seemed like they had better luck.

    Anyway, if I may gratefully ask for your help again...
    In our claim there were 2 defendants, different company names, same directors, same address. It appears that they only filed defense for one of the defendants. When I talked to the court this afternoon the information I got was that I could still request a default judgement against the defendant whom did not file their defense. However I will need to decide the amount claimed in the request against one of the defendants, as in the original claim it was an amount (total owing) plus interest and costs against both defendants.
    To our knowledge it is quite common for companies like these to decide to save one company and shut down the other. So it is a dilemma to decide how to divide the debt amount against each defendant now. It would be much appreciated if you could offer some insight in this instance.
    The registrar also said that the defendant could file their defense any time, even after the 28 days deadline, if we don't take further action. I was really disappointed to hear that as it was total BS, why bother to set a deadline then?
    On the other hand we do have a solicitor on our case since the beginning. However it just seemed like our case wasn't important enough it took her days to call me back or email me back. It is just frustrating the whole thing. The court could ring the defendant to tell them their paper had problem needed to be redone, but they couldn't give us a call and let us know they decided to give the defendant more time and another chance. Sorry about the whinge I am just really frustrated.
     
  4. Rob Legat - SBPL

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    I'm slightly confused. You have a solicitor acting for you, but you went and lodged the default judgment application yourself? Not that I have much litigation experience, but I've also never heard an application for default judgment in a liquidated claim going in the "to be done " tray. In any I've ever done, they're either processed on the spot or rejected. You may want to query exactly what happened there.

    Going for default judgment against the one company who didn't file a defence may be a ploy to sucker you in. Without knowing that they have any financial ability to cover the judgment, I'd be waiting it out.
     
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  5. NotABabe

    NotABabe Active Member

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    Hi Rob,

    Thanks again for replying.
    We consulted a solicitor and paid the fees for her to review and alter our papers, then lodged the paper ourselves. She said she would represent us if we needed further action.
    The situation is confusing that's why after the phone call to the court house we went in to talk to the registrar face to face this afternoon.

    On the 20th when we filed the request for default judgement at the court house, the front desk lady confirmed with the registrar that the other parties claimed they were going to file defense however the court has not received it, thus the court would accept our application. She said to me " I will go ask the registrar if she would give it to you right away." 5 minutes later she came back and said " No she would give you the paper in a week time." So we left the court house happily
    .
    But today the same registrar told us that she did not process our request right away (on the 20th), and on the next day 21st she received the first defendant's file for defense. She then talked to the "senior" and they've decided to accept the defense because SHE HAS NOT PROCESSED OUR REQUEST from the day before. She then further instructed the defendant to fill out correct forms, waiting for the formal paper to be posted to her, which she received on 26th, and then she rejected our request of default judgement. We are extremely frustrated and upset. We followed all the rules, and it's now more difficult because she didn't process it or at least date stamp our paper.

    I did think about the possibility that it was a trick that the defendants used to suck us in. As far as I know, we can only find out their financial positions at Enforcement hearing (after the judgement)? What else can we do now?

    Thanks again Rob.
     
  6. Rob Legat - SBPL

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    It sounds like the Registrar gave the defendant extra time to lodge their notice of intention to defend. I guess they thought their reason was valid and / or they wanted to avoid the likelihood of an application to overturn a default judgment.

    Either way, you should be served with a copy of the notice of intention to defend and the defence within 14 days of it being filed. If not, contact the court. When you've got it, go back to your lawyer.
     
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