Limitation Period for Body Corporate Debt Recovery

Thursday, September 27, 2018 - Posted by Michael McCulloch

There has been some anxious times recently for body corporates who have been eagerly awaiting the decision in the Queensland Court of Appeal in Body Corporate for Mount Saint John Industrial Park Community Title Scheme 18632 v Superior Stairs & Joinery Pty Ltd [2018] QCA 173.

In the District Court the Defendant, Superior Stairs & Joinery Pty Ltd (STJ) argued that the action by the Plaintiff, Body Corporate for Mount Saint John Industrial Park Community Title Scheme 18632 (Body Corporate), should be struck out after action was taken for the recovery of unpaid levies, recovery costs and penalty sums on the basis that the proceedings were commenced outside of the limitation period. STJ arguies that the limitation period for bringing body corporate debt recovery action was contained in Section 145 of the Body Corporate and Community Management (Standard Module) Regulation 2008 (QLD) -

Part 4 Payment and Enforcement of Body Corporate Debts
s145 Payment and Recoery of Body Corporate Debts

(1) If a contribution or contribution instalment is not paid by the date for payment, the body corporate may recover each of the following amounts as a debt -
(a):  the amount of the contribution or instalment;
(b) any penalty for not paying the contribution or instalment;
(c) any costs (recovery costs) reasonably incurred by the body corporate in recovering the amount.
(2) If the amount of a contribution or contribution instalment has been outstanding for 2 years, the body corporate must, within 2 months from the end of the 2-year period, start proceedings to recover the amount.

STJ successfully argued in the District Court that the time limit for recovery of a debt by the body corporate was 2 years and 2 months pursuant to s145(2) however the Body Corporate submitted at the time that the time limit was 6 years from the date the levy became due and payable pursuant to Section 10 of the Limitations of Actions Act 1974 (QLD).

 The District Court agreed with STJ at the time however on appeal, the Court of Appeal, overturned the District Courts decision. In the decision Justice McMurdo, Justice Mullins and Justice Bond stated that the issue raised on appeal was not that of conflicting limitation periods but whether or not s145 prescribes a limitation period. The Justices concluded that s145 is to compel a body corporate to commence proceedings but cannot be interpreted as a limitation period and therefore s10 of the Limitiation of Actions Act is the governing legislation (ie 6 years from the date the contribution becomes outstanding).

Collecting Debts and the Statute of Limitations

Wednesday, June 04, 2014 - Posted by Michael McCulloch

In a recent Victorian Supreme Court matter, Financial Ombudsman Services Limited v Pioneer Credit Acquisition Services Pty Ltd [2014] VSC 172, an interesting outcome occurred in relation to collection action being undertaken on debts approaching the statute of limitations.

Background

Pioneer are a debt collection agency who purchase debts and collect debts for clients. They purchased a debt ledger where the debts originated in the UK. The majority of the debts were from Barclays Bank. The case concerned debtors who moved to Australia. The debts acquired were subject to the Consumer Credit Act 1974 (UK).

In July 2009 a complaint was made to The Financial Ombudsman Service (FOS) disputing the amount of a debt, and that a default listing had been made in these circumstances. In September 2009 Pioneer advised FOS the matter would be statute barred in November 2009 and sough consent to initiate legal action. FOS consented to the commencement of proceedings in Western Australia on the provision that the proceedings not be served on the defendant until the matter had been determined, and if the determination was unfavourable the proceedings be discontinued.

On another debt, a debtor made a complaint to FOS on 4 December 2009. Pioneer contact FOS to seek consent to commence legal proceedings because the debt would otherwise become statute barred on 12 January 2010. FOS consented to the commencement of proceedings in Western Australia on the provision that the proceedings not be served on the defendant until the matter had been determined. FOS subsequently found that once proceedings were commenced in Western Australia, unless a debtor lodged a defence, an automatic listing would be recorded against the debtor. Upon learning this, FOS withdrew its consent to commence legal proceedings. Despite this Pioneer commenced proceedings on 7 January 2010.

 

FOS made a determination that the debts were unenforceable in Australia.
 

The dispute between Pioneer and FOS

The dispute between Pioneer and FOS was a contractual dispute. Pioneer argued amongst other things;

• FOS must correctly decide on questions of law (arguing that the debts were collectable and enforceable in Australia).
• Whether there is an implied term that FOS must not act as a court (arguing FOS acted as a court and is not allowed to act as a court).
• There is an implied term that FOS must not act unreasonably (by allowing the debts to become statute barred).

The Judge in the Victorian Supreme court found;

• FOS "is only required to have regard to applicable legal principles. It is also clear that that is only one of the matters to be taken into account. Therefore, it cannot be that FOS is required to apply legal principles to the exclusion of all else, nor that it will be in breach of the Membership Contract should it fail to apply the law strictly".
• FOS did not act as a court, and there is no implied term in the contract for FOS to act as a court.
• FOS acted reasonably. a "legal standard of reasonableness does not involve substituting a court’s view as to how a discretion should be exercised for that of a decision-maker"

The outcome for Pioneer

Amongst other things, Pioneer was ordered to pay approximately $110,000 in costs to FOS. The membership contract between FOS and Pioneer was held to be valid and binding on Pioneer.

Effectively the decision by FOS meant that one of the debts became statute barred and were not collectable and that this was a reasonable outcome, that is it was more reasonable for a debt to become statute barred for the debtor than for the creditor to completely lose its right to enforce a debt.

Debt Collector letter language used under the microscope

Monday, March 17, 2014 - Posted by Philip Harvey

In the US, a court of Appeals made a ruling on the language of a debt collection letter against a collection agency (therefore breaching the Fair Debt Collection Practices Act).
A lower court had previously ruled in favour of the debt collection agency.

The language being used in a debt collection letter was in dispute. A debtor had received a collection letter from Healthcare Revenue Recovery Group. The letters 2nd paragraph stated;

If we can answer any questions, or if you feel you do not owe this amount, please call us toll free at 800-984-9115 or write us at the above address. This is an attempt to collect a debt. Any information obtained will be used for that purpose. (NOTICE: SEE REVERSE SIDE FOR IMPORTANT INFORMATION.)

On the back of the collection letter it stated:

This is an attempt to collect a debt from a debt collection agency.  Any information obtained will be used for that purpose.

Pursuant to Sec. 809 of the Fair Debt Collection Practices Act, unless you notify this office within 30 days after receiving this notice that you dispute the validity of this debt or any portion thereof, this office will assume this debt is valid. If you notify this office in writing within 30 days from receiving this notice that you dispute the validity of this debt or any portion thereof, this office will: obtain verification of the debt or obtain a copy of a judgement [sic] and mail you a copy of such judgement [sic] or verification. If you request this office in writing within 30 days after receiving this notice, this office will provide you with the name and address of the original creditor, if different from the current creditor.

The debtors contention was that a consumer could be confused by the second paragraph where it refers to "please call", where on the back of the letter, all disputes must be "in writing".

The previous court had ruled that the "please call" language would not confuse "the least sophisticated debtor".

The appeal court however ruled that it would be confusing to the "least sophisticated debtor".

What can we take from this ruling? Always ensure your message / communication is consistent, and consistently applied through your debt collection process.

US Debt Collection agency closed for deceptive practices

Monday, August 13, 2012 - Posted by Philip Harvey

State authorities in the US shut down a debt collection agency for deceptive practices, where the agency attempted to trick consumers into thinking they were in trouble with the law when they were not. The Attorney Generals office in Buffalo received hundreds of complaints from consumers. The subsequent investigation found that the collection agency was contacting consumer employers, demanded to know social security numbers, illegally sent letters on local Attorney letterhead, and falsely represented consumers that they would be referred to Attorneys. They falsely represented themselves as process servers and implied they had Judgment when legal action had not commenced.

FTC imposes $2.5m fine on US Collection company

Wednesday, February 15, 2012 - Posted by Philip Harvey

In the US, the Federal Trade Commission agreed to a $2.5m US penalty settlement with a debt collection company, Asset Acceptance. This represents the second largest penalty against a Debt Collector in the US.

Asset Acceptance was charged with a number of complaints including;
- failing to tell consumers they could no longer be sued because of the debts age
- reporting inaccurate information about debtors to credit reporting agencies
- failing to conduct a reasonable investigation by one of the credit credit agencies that a debt was being disputed
- continued to try and collect debts that debtors disputed that were not investigated to determine if the debt was valid or not
- used illegal collection practices

Asset Acceptance in the settlement noted that it did not admit to any of the allegations

The debt collection industry in the US has seen complaints rise and the settlement is part of a strategy by the FTC to patrol the industry. Complaints in the collections industry in 2010 jumped by 17%. The collections industry makes up 11% of all complaints received by the FTC (up from 9%).