New Uniform Civil Rules 2020 for legal proceedings in the Magistrates, District and Supreme Courts of South Australia commenced on 18 May 2020.
If the debtor does not pay the debt, there are five options:
Instead of taking legal action, or at any stage after you have started legal action, you can offer an Enforceable Payment Agreement to the debtor. An EPA is an agreement for the debtor to pay the debt in installments, and that the creditor will not commence a legal action or report the debt to credit referencing agencies.
If the debtor defaults on the EPA, the creditor can rely on the EPA to issue proceedings (if that has not happened already) and obtain summary judgment.
2. Further negotiation
Further negotiation may be an attractive option, especially if the debtor indicates they may be able to pay the debt in the future. Use the same techniques described in ‘Negotiation with the debtor’ above. Consider suggesting an EPA as part of your negotiations.
Mediation is a process where both parties agree to sit down in the same room with a mediator to resolve their dispute. A mediator is a neutral third party who may help with discussions, but it is up to the parties themselves to arrive at a solution. Mediation has a number of benefits:
The Magistrates Court offers a mediation service. You can request mediation at any time, even if you have not already started your legal action. Contact the court for more information on how to access this service.
If you come to an agreement as to how to pay the debt, ensure you put it in writing. An Enforceable Payment Agreement (Form P2) can be used for this purpose.
4. Commencing legal action
There are several factors to consider before taking legal action.
Can you prove that you are owed money by the debtor? Do you have documentation of the debt such as an invoice, or witnesses who will confirm your version of events? Do you have text messages, letters or emails from the debtor that confirms the debt?
A Minor Civil Claim in the Magistrates Court can be settled at any time. However, it will be some months before a trial occurs if the debtor does not agree to pay the debt. Enforcing the judgment will take some time after this and the debt may not be paid in full straight away but in installments.
If you are representing yourself, you would need to be available in court at the time set for your directions hearing and trial.
Fees need to be paid when:
The fees are published on the Court SA website. If a fee is payable when you lodge your forms online, the system will calculate the fee. You cannot progress your claim without making payment of the fee.
The fees are added to your claim against the debtor.
5. Writing the debt off
If negotiation and mediation are not successful or possible, and if any of the above factors mean that you do not wish to take legal action, then you can choose not to recover the debt, that is, you can ‘write the debt off’. In some cases, a business debt may be tax deductible.