FAQs

It is a Debt Collector’s business to collect money. Normally if they fail to collect a debt they don’t get paid, so they have good reason to try and collect your debt. They also have the knowledge and experience to take what can be a time consuming and frustrating chore out of your hands and turn it into cash flow for your business.

Under the Limitations of Actions Act 1958, a creditor only gets a limited amount of time to sue a debtor for a “simple contract”. Most debts arise from simple contracts. If a Judgment has not been entered against a debtor in a Court, the time limit is six years. If a creditor does not bring Court action against a debtor within the relevant time limit, the debt becomes “statute barred” and the debtor will have a complete defence to any Court action brought against them. This is also the case in other States in Australia with the exception of the Northern Territory which is 3 years.

Time under this Act starts to run from:

– the date a debtor should have made a payment;

– the date a debtor last made a payment; or

– the date a debtor or their representative acknowledged in writing that they owe the debt.

You should go to the most recent of these events and count six years. If six years has expired, the debt is statute barred. While this does not mean that a creditor cannot ask a debtor to pay the debt, it does mean that if the creditor seeks to a debtor in court for payment, a debtor will have a complete defence.

Normally, no. You have engaged a third party to perform services for you. Your debtor is not a party to that engagement. HOWEVER, if you have a signed quote, agreement or credit application form which has been signed by your debtor and that quote, agreement or credit application contains the applicable debt collection costs clause, then YES, you may demand payment of your debt collection fees from a debtor.

If a debt has been incurred prior to a debtor company being deregistered, you are unable to recover payment from this company as it ceases to exist. However, if the debt is of a large sum and you wish to pursue the debt against the company then you may apply to either the Supreme Court or Federal Court for an order reinstating the company. Once the company is reinstated you will then need to institute further legal proceedings in the applicable Court to recover the debt. The costs of this process are considerable.

No you cannot. If the company incurred the debt, then that is the legal entity that owes you the money. Unless of course, you hold a signed personal guarantee by the Director. You may then rely on this document to recover payment from the Director personally.

Unfortunately no. There are just two many outcomes which could occur which may hinder or prevent debt recovery. A debtor company may be placed into Liquidation or a sole trader goes Bankrupt. The debt may be disputed leading to both parties ‘walking away’, or the debtor may simply refuse to pay and the debt amount is simply not large enough to justify litigation due to the costs involved. You can be assured though that a collection agency will give it their best shot, as recovery means they get paid.

This is a question which gets asked a lot and the answer is not straightforward. Normally if you invoice someone, any terms and conditions on your invoice are ‘after the fact’. Your customer will be seeing these T & C’s for the first time on the invoice and the job has probably already been done or the goods already sold and delivered, so how can your customer possibly agree to your terms at the invoicing stage. What you need is for these terms and conditions to be agreed on beforehand, either by having your customer sign a contract, credit applicaiton form or a quote, with these documents containing your terms and conditions. Contrary to this, there can be an argument that if you have had a prior course of dealing with someone over an extended period of time, then it may be implied that they have accepted the terms on your invoices by continuing to do business with you. Further, if you have these terms displayed in a viewable area in your business which your customer can easily find and read, then this may also be an implied acceptance of the terms displayed. This however is not good business practice and should not be relied on as a debtor will argue against it. A signature is what you really need.