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Deciding whether to take legal action

New Uniform Civil Rules 2020 for legal proceedings in the Magistrates, District and Supreme Courts of South Australia commenced on 18 May 2020.

Additional information for creditors about Minor Civil Actions may be found in Going to Court.

If the debtor does not pay the debt, there are five options:

  1. Offering the debtor an Enforceable Payment Agreement
  2. Further negotiation
  3. Mediation
  4. Commencing legal action
  5. Writing the debt off
  1. Offering the debtor an Enforceable Payment Agreement (EPA) Form P2

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.

The EPA Form P2 Enforceable Payment Agreementis available from the Magistrates Court or the Magistrates Court website here [link opens in a new window].

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.

3. Mediation

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:

  • it is informal compared to court proceedings, with less stress on the parties
  • the mediator will not decide on how to settle the matter – this is for the parties to decide
  • the parties have more control over the process and outcome
  • free mediation services are available, whereas legal action involves court fees
  • mediation generally gives a quicker resolution than going to court
  • the privacy and confidentiality of the mediation process is assured (parties sign a confidentiality agreement before the first mediation session and, if both parties are in agreement, the outcome can remain confidential)

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.

Proof

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?

Time

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.

Costs

Fees need to be paid when:

  • you give notice of intention to sue using the prescribed Final Notice (Form P1)
  • you file a Minor Civil Claim
  • if you need to enforce the judgment

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.

Other factors

  • Do you wish to preserve the relationship with the debtor or others?
  • Will mediation of further negotiation be more likely to produce a desirable result?

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.

Deciding whether to take legal action  :  Last Revised: Tue May 19th 2020
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.