Late Payment of Debts: What Should I Do?

Good Morning

"You may delay, but time will not, and lost time is never found again."
Benjamin Franklin
If you have a claim against someone it is very important that you take prompt action to obtain your remedy.

Many matters are time-limited by legislation. Whilst the number of matters which are time-restricted are numerous, some of the more common include:

You must commence a family property application within 12 months of a divorce;
Recovery of debts must commence within 6 years of the debt becoming due and payable; and
An application for unfair dismissal must be lodged within 21 days of the dismissal.

Whilst you are able to make application to the court to have a time limit extended, it will require very good reasons to explain to the court as to why and how the delay occurred. Any such application will be decided upon the merits of your reasons and such an application cannot be guaranteed of success. Any such application will most probably result in incurring unrecoverable legal costs.

When you are recovering an outstanding debt, any part payment made, even if such payment occurs after the 6-year limit, extends the time for recovery for another 6 years from that date. In cases where an unreasonable delay has occurred without a reasonable excuse, a defendant may rely upon the equitable defence of latches. This is a legal defence which can be invoked where a plaintiff has unreasonably delayed pursuing their cause. When such a defence is raised, the court will consider all of the circumstances. In doing so, the court will consider whether such delay would have given rise to a reasonable belief in the defendant, that they could reasonably assume that the matter had been finalised. When such a defence is raised the court will need to be convinced by the defendant of the following:

The plaintiff knew of the legal remedy;
That in all of the circumstances the delay in commencing the proceeding was unreasonable;
That the defendant had acted reasonably as a result of the delay and that to grant the plaintiff a remedy would be unfair.

Prompt action must be undertaken to pursue any claim. If you don’t you may lose your opportunity to make a claim or be subjected to the unnecessary costs in pursuing a case to allow you to proceed out of time. If either you or anyone you know would like to discuss any of the matters raised, please do not hesitate in contacting me.

Have a wonderful day,

Jeffrey
0419 233 670
[email protected]
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