 If you are forced to pursue debt recovery, by starting a claim in a Court, to obtain a Court judgement of the debt, you need to ensure that the claim is properly served (given) to the debtor. In the absence of service of the claim, you are unable to obtain a default judgement, or take other action to get the Court judgement necessary to enforce collection of the debt. It is also necessary to serve a claim within prescribed time limits, after which time you cannot serve it to obtain a default judgement. The usual time periods are 6 months in the Local Court, and 1 month in the District Court. After that time, you will have to file a fresh claim, and pay all the Court fees again. Below is an overview, describing what service is, and of the methods of service, and what is required. There is also a short description of what to do if you cannot serve the debtor, which is known as substituted service. It should also be noted, that service of a company is different from the service on an individual. Service of Court Documents Service of documents means the delivery of court documents, usually a statement of claim, on the debtor, for the debt. There are a number of different ways to serve the documents, and the form of service depends whether the debtor is a company or an individual. Service on an Individual There are 2 ways to Serve the documents: Personal Service This is where the claim is personally delivered in debt recovery, to the defendant, or a person apparently over the age of 16 years at the defendant's address. Personal Service is required before you can file for a default judgement of the Claim. The personal service has to be verified by an affidavit of service. You can do the personal service of the documents yourself, or the service of the documents can be achieved by engaging professional Service agents to do it. Or, you can pay a fee to the Court to arrange service. The Court will get the Sheriff to undertake personal service, although it is not a very fast way of getting the documents served. If there is some urgency, it is not suggested you get the Court to undertake the Service of the Claim. The other way to serve a claim, and is the only exception to personal service of a claim is: Court Post This is where the Court charges a fee, and posts the claim to the address of the Debtor that you provide. Provided the letter is not returned to the Court, you have deemed Service of the claim on they date the Court advises, usually 5 days after they post it. You can then file for a default judgement after waiting a further 28 days. Click, if you want to read about how debt recovery after a Court judgement is obtained. One of the drawbacks of service via Court post, is that once you start post-judgement collection of the debt, (see the link above), the debtor can file a Notice of Motion to set aside the default judgement, on the basis that the debtor says he did not receive the claim. The Debtor is more likely than not, to get the default judgement set aside, provided the Court accepts that the Debtor did not receive the Claim. If you have engaged a solicitor to oppose the notice of motion to set aside the default judgement, and, if the Court does set aside the default judgement, because the Court accepts the Debtor did not receive the Claim, you are unlikely to get an order for costs. On the other hand, if there was personal service, and if a debtor applies to have the default judgement set aside, because of personal problems or some other reason, the Court is more likely to make an order for the costs you have incurred. It is not usually a lot of money, but it is a cost that you would otherwise have to pay. At least with personal service, it it more difficult for the debtor to maintain it was not received, and to get the default judgement set aside. Court post in debt recovery is a little cheaper, than service by the Sheriff or a private service agent, but it has disadvantages, as referred to above. Click this link to find out the Court fees for Court post Click this link to find out the Sheriff fees for Service of Court documents . Service on a Company Service of Court documents on a Debtor Company, is achieved by sending the claim or document by ordinary post to the registered office of the Company. You will need to do a company search to get this information. Remember to date and keep a copy of the letter by which you are sending the claim. It can then be attached to the affidavit of service, which you will lodge, when you file for default judgement. Normally, you would deem, service of the claim, 5 days after you post it, and then after a further 28 days, you would file the application for default judgement.
Order For Substituted Service In debt recovery, this is an order you would seek from the Court, where you can not locate the Debtor, or despite numerous attempts to serve the Debtor, the documents cannot be served. It is important that you keep a record of all attempts to serve the documents, and what has occurred. An example of this is: you know the Debtor's address, but no-one will answer the door. When personally serving a document, the requirement is that the document is given to that person, or left at their feet if they will not take it. You can also hand it to a person apparently over the age of 16 years at the debtor's address. However, if there is no answer at the door, you can not serve it. An order for substituted service is obtained by filing a Notice of Motion in the Court seeking such order. It is filed with an affidavit detailing the steps you have taken to serve the document. In the application for substituted service, for debt recovery, you might ask that service be effected, by leaving the claim in the mailbox, or by delivery on the Debtor's parents or someone else. Each case has its own circumstances, and each application for such an order, must be tailored to suit those circumstances. Once you get the order for substituted service, in debt recovery, you would then serve it in compliance with the order. You would then wait the necessary 28 days, and then file for default judgement, including lodgement of the affidavit of service in accordance with the Court's order. It is noted that the above comments in regard to substituted service, apply in any Court, if you are attempting to take any action against a debtor, which requires personal service of Court documents. Finally In the absence of personal service, or an order for substituted service, you cannot obtain a default judgement. Therefore, correct service of the Court documents, is extremely important in the debt recovery process.
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