Discussion in 'Legal Issues' started by landlubber, 12th Oct, 2012.
Having a company ABN is a good start but best if you can get their official business address.
That is great. How much was the judgment for?
With companies you can issue a statutory demand and they must pay you within 28 days or you can wind up the company. See corporations act s459 from memory
See a lawyer ASAP
I've paid my $9.00 to ASIC for the current information. So I have the address etc. LL
The judgement was for $1985 plus the bond. I've got the bond. LL
Do you know how much it costs to wind up a company? The last time I asked I was quoted $20,000.
The statutory minimum for serving a statutory demand is $2,000.
It would be best to use a lawyer to draft the demand for you as any defect would enable the other partner to challenge it. The document doesn't have to be lodged at court, it is just drawn up and served on the registered address of the company.
You could do it yourself for nothing, but there is a risk if the demand is defective that the other party will take you to court to have it set aside and this is when the costs can add up.
If it is done properly and served properly then there is not much the other party can do - they have to either pay up or not. They have 21 days to pay up or challenge it and it you have a court judgment it would be very hard for them to challenge it.
Once the 21 days have passed then the company is presumed to be insolvent. What then happens is you can apply to the court to have a liquidator appointed.
You will then be paid out of the leftovers after the liquidator takes their share.
This would really depend on how it is done and under what circumstances. Possibly $2000 and up.
If you are a director or member and the company has stopped trading then I think you can apply to ASIC for free.
I believe ASIC will only do that if it has no debt.
Something that should be so simple after all the hoops through which you have already jumped - yet is actually so very difficult. You have received good advice in this thread LL from a practical point of view (cut your losses, claim the insurance, get a debt collector involved (is that possible?) etc etc) but the fact remains that it really shouldn't be this hard in the first place.
Sorry to hear about this. A sobering (depressing?) lesson in modern day rights and responsibilities in the real world...
Yes, no debts or disputes afoot.
VCAT certified order arrives 2 Nov 2012
I applied in writing 12 October 2012. It arrived here yesterday 2 Nov 2012. It's merely a copy of the original with a rubber stamp "signed" to "ceritfy that this document is a true copy of the original document of which it purports to be a copy". I'm not joking....that's the exact wording. This is our legal system at work. Three weeks for a rubber stamp to "certify" a copy of a document of which I have the "original" ? So, what was the order I was given on the day if not a "real" copy? To see this process in action is drivin' me nuts. But we persist ! LL
It isn't any better on the other side of the world either (canada)
It is usually 3 steps of shuffling papers back and forth, before we get to the point where we can garnishee an ex-tenant.
They should do it all at once, as all it does is waste abut a month of my time. Courts know what we want !!!
Sounds like the Vogons...
"Not actually evil, but bad-tempered, bureaucratic, officious and callous. They wouldn't even lift a finger to save their own grandmothers from the Ravenous Bugblatter Beast of Traal without orders - signed in triplicate, sent in, sent back, queried, lost, found, subjected to public inquiry, lost again, and finally buried in soft peat for three months and recycled as firelighters."
Magistrates Court 5 Nov 2012
We have our Certified Order (marked with an "A" on the reverse side.) We present ourselves at Ringwood Magistrates Court ready for "action". We fill out the affidavit. We sign it and swear it's the truth. Yes, he hasn't paid me. They take both and I wait. They also take a $15 fee from me. The lady is helpful. She gives me another "notice" that the order has been "made". OK, what now? She gives me another sheet that explains my options. In italics it says " It should also be noted that there is no guarantee of payment with any of these proceedings". Not a good omen !! One option is the Sheriff seizing goods and selling them at public auction. There's a heap of "rules". Items that are encumbered (eg under finance) cannot be siezed. Gee, I wonder how they sort that out on the job? Anyway it's our best bet. How do I get the Sheriff into action ? Fill out this form and we'll issue the warrant. More forms. More wait. We get our "WARRANT TO SEIZE PROPERTY". OK, now where do we go? Where's the sheriff. ? They have an office up the road and around the corner. ... off we go ...LL
There cannot be any guarantee of payment as it is possible the person has no money or assets.
Seizing property is one option, another is garnishing wages - need to know where they work. You may be able to get an examination summons and order them in court to answer questions regarding their financial situation etc too.
Don't expect the seizing of property to go well either. It will take time and there will be disputes with them claiming the item is not theirs etc.
Oh Sheriff where are thou ?
On the corner of Bond St is a Legal Aid office. I ask for the Sheriff. Down the road , white building , you'll see the Centrelink signs. Off we go. Into the Centrelink building. My god how depressing. So many people. So many long queues. Outa there, rather be dead. The only other sign I see is Justice Dept. Up the stairs. Ahhhh peaceful !! Hi, I'm looking for the Sheriff's Office. You've found it. Good ...OK, I've got a warrant and I know I have to pay a fee. Oh, you can't pay any fees here. Why not ? Aren't you the Sheriff's Office? Yes, we are, but you can't pay fees here. OK, so where do I pay. Is there a cashier? Just hold on and I will find out. ....wait... wait ... You have to go this address ...Level 1, 277 William Street Melbourne in the city. Whaaaaaat ? You mean this IS the Sheriff's Office but I can't give YOU a payment for YOUR fees. That's correct. You can only pay fees in the city. ( I'm so happy I could throw myself down the stairwell ....). Or....you can send them the original order plus a cheque for the fee of $171.80 and mail it in. So tonight our precious warrant and a cheque for $171.80 fees has gone registered post to William Street. Oh, this is such fun !!! ...and I'm the good guy !! We wait. LL
We received a cheque last week from the Sherrif's office (Canada) for $183.
This tenant was given the chance to pay us via small installment payments without incurring these costs, and he did...for a month. He then stopped. We gave him another chance, and he basically told us to get f**ked.
Then he was very upset when he received the garnishment order. It may be years before we get the final payments, but we are paid interest, and costs.The fact he sees every paycheque money being with held, is enough to make it all worthwhile
Aren't I a ******?
A nice phone call from the Sheriff - 28 Nov 2012
I had a surprise phone call from the Sheriff's office. The caller advised me he was the actual officer who had served the warrant on the ex-tenant. "Hi, pay up mate or I'm about to seize goods to the value ...". The ex-tenant decided to pay in full on the spot. Apparently the Sheriff now banks the "money/cheque etc" and then we'll get our $$$ in a couple fo weeks. He said he collected about $2,200. This would include our costs/fees etc. The officer really sounded as if he "enjoyed his work" . So no money actually in our hands yet...but if you have a clear identity of the culprit AND an address where they can be found and are persistent with "the system", it looks like the system might work !! LL
Well done. Good guys eventually win . Thanks for sharing the information about 'the process'. Invaluable insight for all. Just hoping none of us have to use it.
By the way, was this a resi or commercial property, it wasn't clear to me.
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