Debt Recovery Lawyers

Brander Smith McKnight, a premium law firm in Sydney have experienced debt recovery lawyers dedicated to assisting with business and personal debt recovery. We specialise in managing outstanding debts and unpaid invoices for businesses and proudly achieve a success rate of over 90% recovery.

You can rely on us to recover your unpaid debts. The lawyers at BSM have expertise in all aspects of debt recovery.

We take pride in our ability to negotiate, advocate and fight tirelessly for our clients, ensuring that business debts are recovered. Our knowledge of the law ensures that debts are efficiently recovered, costs cut and business disputes resolved. Whether you’re an individual or business in Sydney we can assist you. We’re more than a debt recovery law firm, we’re your allies and advocates ensuring that you get paid in full and providing you with a streamlined debt recovery process.

Letter of Demand

The first, fastest and least expensive step in the debt recovery process is a letter of demand. This is sent to the debtor and provides the amount of the debt, details of any invoices and under what circumstances the debt became due and payable. The letter demands that payment be made by a certain date and explains that legal proceedings will commence if this doesn’t occur. The lawyers at Brander Smith McKnight can prepare this letter within a few days. In over 75% of cases this results in recovery of your debt. A letter of demand, written by a lawyer sends the clear message that you are serious in pursuing the debt. Not only does this get your debt paid, it also clearly communicates your intention to commence further legal proceedings if needed.

Statement of Claim

The next step if payment is not received is the issuing of a statement of claim. A statement of claim is a legal document that initiates legal proceedings, describes the course of action, the nature and often the amount of the claim. This document is filed with court and subsequently served on the debtor, who is then referred to as the defendant. Once the statement of claim is served on the defendant, they have 28 days to file a defence. This action often results in the defendant making a payment or entering into negotiations to avoid litigation. However, if the defendant does not file a defence, the debt recovery lawyers at BSM can make an application for default judgement.

02 8539 7475

Call us to arrange a free 20 minute no obligation consultation that includes case evaluation and cost estimate.

Default Judgement

A default judgement is a judgement awarded by the court, which is recorded on the defendant’s credit file and allows the plaintiff to enforce the judgement.

Litigation

The vast majority of our debt recovery matters are successfully recovered without the need for litigation. Litigation is the term used to describe civil (non criminal) court proceedings. This includes the preparation and service of evidence and the actual hearing of the matter by a judge or magistrate. Each court has a different financial jurisdiction as set out below:

Debts for less than $20,000 are heard in the Small Claims Division of the Local Court. Matters are heard by an assessor with limited formality with generally no cross examination. The Small Claims Division has limited jurisdiction to award the recovery of legal costs.
Debts between $20,000 and $100,000 are heard in the General Division of the Local Court. A magistrate hears these matters, and the General Division has the jurisdiction to award legal costs to the successful party.
Debts between $100,000 and $750,000 are heard in the District Court by a District Court judge.
Debts over $750,000 are heard in the Supreme Court by judges known as justices of the Supreme Court.

The debt recovery lawyers at Brander Smith McKnight have extensive experience appearing in all of the above jurisdictions to represent and advocate for clients. Generally our lawyers appear in court without the need for the additional expense of a barrister. However, when a barrister is required, we have a panel of barristers that we can engage.

Enforcement of Judgement

Once you receive a judgement from the court, the defendant will usually pay you the judgement amount. However in some circumstances the defendant refuses to pay. If this occurs, our debt recovery lawyers can develop a strategy using the available debt enforcement methods to recover your debt.

It is very useful to know that by law, once you have obtained a judgement from the court, this judgement is valid and available for enforcement for 12 years.

Garnishee Orders

This is one of the methods of enforcing a judgement. It is legislated by Part 8, division 3, the Civil Procedure Act 2005 (NSW). These orders compel third parties that control funds of the debtor (the person who owes money) to pay money directly to the creditor (the person who is owed money). Examples of third parties include the debtor’s bank and employer. It is important to note that time limits apply to payments from garnishee orders. These time limits change depending on the circumstances in which the order was made. The debt recovery lawyers at Brander Smith McKnight can make an application to the court for the award of a garnishee order.

02 8539 7475

Call us to arrange a free 20 minute no obligation consultation that includes case evaluation and cost estimate.

Bankruptcy

Bankruptcy is legislated by the Bankruptcy Act. 1966 (Cth) and applies to individuals (not companies). Where a judgement debt is greater than $10,000, the debtor can be bankrupted for failure to make payment. The process involves serving a bankruptcy notice on the debtor, which provides the debtor with 21 days to make payment. If the debtor fails to make payment, they have committed a failure of bankruptcy, and the creditor may file a creditor’s petition to the Federal Court to make an order to bankrupt the debtor. Once this order has been made, the court appoints a trustee in bankruptcy to take control of the debtor’s assets and income. The trustee will pay creditors from any funds in the bankrupt person’s estate. This method of enforcement is suitable when the debtor is an individual, not a company and the amount owed is a relatively large amount.

Insolvency

Insolvency is legislated by the Corporations Act 2001 (Cth) and applies to companies and not individuals. Where a judgement debt is greater than $4,000, the judgment creditor may issue a statutory demand on the company. A statutory demand is issued subject to s459 E of the Corporations Act 2001 (Cth). This provides a company with 21 days to make payment. Generally in the absence of payment the company will be presumed to be insolvent. The creditor may then apply to the court for the debtor company to be wound up in insolvency and a liquidator appointed to the company. The liquidator will pay creditors from any funds available in the company. This is a suitable method of enforcement when the debtor is a company.

Writ for Levy of Property

A writ for levy of property is an order made by the court and is legislated by s106 of The Civil Procedure Act 2005 (NSW). This order entitles the NSW sheriff to seize and sell property owned by the debtor to pay the judgment debt. The property that may be seized includes money, goods or personal property of the debtor and real estate where the judgement debt is greater than $10,000. Property such as household essentials and tools of trade are exempt. The writ for levy of property is enforced by the sheriff attending the debtor’s property and seizing their goods and property. The powers and authority of the sheriff are legislated by the Sheriff Act 2005 (NSW).

We also act for Defended Matters

It is not uncommon for a claim to be made that is not payable or valid. In those circumstances our lawyers have the experience and expertise to develop a legal defence and vigorously defend your matter. Where a debt is not legally payable, this can often be settled by negotation and correspondence by our highly effective debt recovery team.

Why BSM?

Brander Smith McKnight has a team of debt recovery lawyers with over 4o years of combined experience. We have acted for some of the world’s best known companies and brands who have engaged us for our legal expertise over many years. You can rest assured that we apply the same diligent, conscientious and tenacious approach to each and every matter, no matter how big or small.

02 8539 7475

Call us to arrange a free 20 minute no obligation consultation that includes case evaluation and cost estimate.

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FAQs

What can debt recovery lawyers do for my business that a collection agency can't?

Debt recovery lawyers can provide comprehensive legal services that collection agencies can’t. This includes providing legal advice, preparing and reviewing contracts, legal and court documents, representing you in court and handling disputes that may arise during the debt recovery process. In essence, they offer a more personalised service with consideration of all legal details and ensuring that your interests are comprehensively represented.

What is the statute of limitations for debt recovery in NSW?

In New South Wales (NSW) the statute of limitations for debt recovery is typically six years. This period begins from the time when the debt becomes due. However, this timeline can be extended in certain conditions. For instance, if the debtor acknowledges the debt in writing or makes a partial payment. In addition, if the debt arises from a contract the statute of limitations is six years, while where the debt arises from a deed or a court judgment the statute of limitations is twelve years.

Are debt recovery lawyers the same as a debt collection agency?

Debt collection agencies act to assist their clients to recover debts generally by reminding debtors usually via telephone calls or writing letters. The Legal Profession Uniform Law 2014 (NSW) states that only lawyers and law firms can provide legal advice and undertake legal work. A law firm providing debt recovery services is able to provide legal advice to their clients, draft and send letters of demand, draft any and all court documents and where necessary commence and advocate in any court proceedings. Debt collection agencies are unable to do this without engaging a law firm.

Are all debts recoverable?

Any genuine debt may be pursued and where necessary a court judgment ordered for that debt. However, the biggest risk to recovery of a genuine debt is the financial circumstances of the debtor (the person or business that owes the debt). Brander Smith McKnight debt recovery lawyers can undertake the necessary searches and research to determine the debtor’s capacity to repay any debt early enough to avoid incurring unnecessary legal costs. Where the financial circumstances of the debtor are limited, some enforcement procedures may still be successful such as garnishee orders against wages or bank accounts, writs against assets and property and bankruptcy or insolvency proceedings.