Are you owed money that you would like to collect?
If so, Neill Ogge Lawyers can act for you in recovery proceedings. In most situations, you can also recover all or most of your legal costs.
Debts of up to $100,000 can be recovered in Magistrates Court or at VCAT.
Debts over $100,000 can be recovered in the County Court or at VCAT.
Neill Ogge Lawyers can assist you with:
A letter of demand; and
Preparing and serving a Complaint; and
Entering judgement against the debtor (when no Defence is filed within 21 days).
Once judgement is entered, a number of procedures are available to enforce it. At Neill Ogge Lawyers, our debt recovery lawyers can prepare a Warrant (for seizure of goods), a Summons for Oral Examination (requiring the debtor to attend Court to show how he or she will satisfy the judgement), Attachment Orders (deductions from wages) and Garnishees Orders (where the Court orders a third party to pay money to a creditor instead of a debtor).
If these procedures fail to produce a result, and the debtor owes more than $2000, Neill Ogge Lawyers can commence either bankruptcy proceedings (for individuals) or winding up proceedings (for companies).
If an individual is declared bankrupt a trustee is appointed to the insolvent person’s estate to turn any assets into cash for distribution among his or her unsecured creditors (those who do not hold security).
Secured creditors have priority and may realise the asset securing the loan (e.g. a bank sell a property if mortgage payments are not made).
Bankruptcy proceedings are handled in either the Federal Court or the Federal Magistrates Court, depending on their complexity.
When a company is insolvent the Court has the power to ‘wind it up’ and appoint a Liquidator, whose responsibility it is to turn the assets into cash and distribute in the order set out in The Corporations Act.
The liquidator firstly recovers his costs, followed by certain entitlements to employees. The balance is distributed among unsecured creditors.
Winding up proceedings are filed in either the Supreme Court or the Federal Court. Neill Ogge Lawyers can assist you by preparing a Statutory Notice and filing an Originating Motion. If the Court is satisfied that the company is insolvent it can appoint a liquidator.
What Happens if a Liquidator is Not Appointed?
If the company has a solid core business that would allow it to trade viably in the future, the Courts can appoint an administrator. An administrator is an insolvency practitioner, independent of the company in question.
Administrators have the power to call a meeting of creditors to decide whether to put the company into liquidation or to accept the offer of the directors (allowing the company to trade in its core business to generate cash flow to pay the debt). In this situation, the company and its directors execute a Deed of Company Arrangement, which allows the creditors to take payment in satisfaction of their claims against the company. During this phase, the administrator retains control of the company until debts are paid. Once paid, control of the company is returned to its directors.