The following will probably be only interesting, and maybe even useful (or maybe not) to those who live in Queensland, Australia, but as of July 2011, this was, and still is, my personal experience with the process of trying to recover $2,500 from a former tenant who left without paying back rent. Some might say I should have had insurance to cover this, but this person was from the same small country town as my wife, and a friend of other family members and friends, and I stupidly thought he would be honest.
Before making a claim for recovery of a Minor Debt through the courts, I had to approach QCAT (Queensland Civil & Administrative Tribunal). This is a new part of the process that involves both parties sitting down with a mediator to try to resolve the issue. I believe QCAT was established to help relieve the backlog in the court system. It was hoped that mediation would resolve many matters without needing to go to court. To me it was an extra impediment inserted in the process.
Of course there are different QCAT forms for different matters. Use the wrong one and you have wasted time and money.
I had to use a form that related to the Residential Tenancies Act, another piece of regulatory clap trap that usually favours the tenant over the landlord. (If you find your tenant is damaging your property, or not paying rent, good luck trying to evict them before you lose more money, or the property is further damaged.)
Before QCAT would become involved I had to send a ‘Dispute Resolution Form’ to the Residential Tenancy Authority and write across the top, “Compensation Only”. The RTA sent back a completed ‘Notice of Unresolved Dispute’ which stated down the bottom, “Not suitable for Conciliation”. This meant I could now make my application to QCAT, not for mediation, but for judgment. I am only guessing, but I think the RTA gets involved in case there is bond money left over that I am allowed to seize. There wasn’t, because the RTA had already let me have that to cover the costs of cleaning the house and ripping up the carpet in one room, and then tiling that room, because the tenant had left a refrigerator on the carpet, turned off, and with food in it. We threw the fridge out too. All up that exercise cost much more than the bond.
The QCAT form can be completed and then printed on-line, or collected from a Magistrate’s Court and completed. The form basically asks for the names and contact details, representative’s names if any, and why the amount is being claimed. The genteel names for the two parties are “Applicant” for me as the person seeking restitution, and “Respondent” for the belligerent person who allegedly owes the money. Don’t get any individual name or business name wrong, or enter them in the wrong places, or you have wasted more time and money.
There is just enough space on the form to enter basic details of the matter, but if you wish to include more details, and you should enter everything that is relevant, it is recommended that you type it onto one or more separate pages and staple them to the form. Then everything is lodged with a fee at a court house. The fee to claim $2,500 was $92.
There are signs everywhere around court house counters saying, “No Legal Advice Given”, but in my experience most of the counter staff are so poorly trained, or so afraid of giving incorrect information and being sued themselves, or the court protocol is to not give assistance that may lead to the courts being accused of supplying incorrect information that affects a case, even questions relating to whether the “i”s have been dotted and the “t”s crossed correctly will not always be answered. Probably even worse than no assistance is to be given incorrect advice, or insufficient advice, yet this tribunal and the Minor Debt Claim process is not supposed to involve lawyer representation; only self representation. As I have had to chase recalcitrant debtors of my wife’s accountancy practice over many years, I have also found that the process and the forms are amended frequently, and once again, many staff aren’t up to date. A word of advice; contact QCAT with your questions, not the court house.
If your action is successful, you can claim your application fee from the respondent, however you can’t claim fees paid to a lawyer. Lawyers are not supposed to be involved at this point.
For a residential tenancy dispute, after the forms are lodged they are posted by the court office, and both parties are supposed to appear at the court house at a set time and date.
(I found out next time I needed to use QCAT, that for a non residential tenancy dispute, the forms had to be delivered personally by a human who had to complete an affidavit to swear that they had delivered the forms to the “Respondent”, or a recognized representative of them. I decided to leave that to a bailiff, at more expense, but which could be claimed from the respondent if I was successful. I did this in case I did something technically wrong, and wasted that time and money.)
A date for a hearing was set and then postponed because one of the worst floods in Queensland’s history prevented the registrar from attending. On the new date my contumacious respondent did not show up. The Registrar asked me to swear on a Bible that I was telling the truth, and awarded the decision to me. This meant there was no more argument possible. I had received ‘Judgment’. I was owed the money. It also meant that the “Respondent” was now a “Debtor” and was a registered defaulter and would have his name included on national credit rating lists as such. This will interfere with his ability to get future loans, including credit cards, and mobile phone plans etc. But I still had to get my money!
After receiving judgment I could send to the debtor a demand for payment and/or many pages of a document that stated his assets and income for him to complete and return to me. If he failed to do either, I could apply for an Enforcement Hearing. He didn’t, and I did.
This meant I had to fill in more application forms. During the process the now “Enforcement Debtor” had moved to another district, in fact the district where he, my wife, and family and friends came from. Here is another case of the law being weighted against the victim. In fact this is the dumbest, most unfair piece of legislation put together by lame-brained politicians I have ever heard of in my 57 years.
The Enforcement Hearing has to be heard in a Magistrate’s Court. Because the Enforcement Debtor had moved to another district, I had to apply through my local court for his local court to have the hearing there. If it was to be held at my local court, and not where he now lived, I had to pay his transport costs, in advance, for him to turn up, AND any wages he may have lost in appearing. In other words I have to give money to someone who owes me money, just to have him MAYBE appear at the hearing.
I would have to pay my transport costs and accommodation to appear at his local court whether he turned up or not. It would be really nice if politicians spent a little more time thinking through the consequences of their legislation, instead of only thinking about how to criticize their opponents, and how to get elected next time. The fair solution is simple. Anyone who has had judgment ruled against them has to get to the enforcement hearing by their own means, or face the issuing of an arrest warrant.
Now I’ve had my little rant, where was I? Oh yes. This latest form included many more of those pages on which the Enforcement Debtor had to complete a statement of assets and income etc, and provide them to me by the hearing date.
I also had to hand the forms to the Enforcement Debtor, or pay a bailiff or agent to do it for me. The fees for this were claimable, if I ever got him to court. Whoever handed the forms to the Enforcement Debtor had to swear an affidavit that it had been done within certain guidelines, and within a ‘reasonable time’ before the hearing date.
As I myself happened to be going to that same town for a couple of weeks to visit family, I decided to personally deliver the forms, and hang around for the hearing. Sod’s Law again. Apparently my Enforcement Debtor had recently returned to where I had just come from, to live and work again, for an indefinite period of time. I handed the forms to his parents, to whom he also apparently owed money, and they promised to forward the papers to him.
I decided to talk with the staff at the local Magistrate’s Court where the hearing was booked about the matter, and to seek advice. I telephoned the court house. The only advice I could be given were quotes from the legislation, which basically told me no more than I already knew. The court official sympathized with me and said that nothing was in the legislation that made allowances for itinerant Enforcement Debtors. Basically if they kept moving, they could get away without ever paying.
His best advice was to give transport money, in advance, to this person who already owed me money. Number 1, I didn’t know where he was to send him money. Number 2, would his parents actually give him the money? Number 3, there was no guarantee he would spend it on transport costs and come to the hearing anyway.
I decided to do nothing. I wasn’t really sure where he was. He could still be in this district. His parents wouldn’t say for sure where he was, or give me his telephone number. Before I left the district I saw his parents again. They told me they had sent the forms, and had been in contact with their son, and he had received the forms.
Due to circumstances, on the appearance date I was back home again, and I drove for 4 hours to get to the Enforcement Hearing. He didn’t!
The staff at this court house now gave me an Enforcement Warrant form. This meant I had to find out where he was, fill out the form with his address details, and get them to a bailiff to arrest him; that is if he doesn’t move between the time I find him and the time the bailiff goes to get him.
To be continued………………….. Don’t hold your breath!
The Last Picasso