We can assist you in deciding if your dispute needs to go to court or whether or not some form of alternative dispute resolution is appropriate. We have always encouraged clients to try and resolve disputes before going to court as it is much cheaper and quicker. If you have a consumer dispute, the Consumer Trader and Tenancy Tribunal of NSW may be able to assist.
Recovering a debt usually means having to file a summons in a court. If the debtor does not dispute owing the debt then you would not need to attend court and enforcement proceedings to try and recover what is owed can be conducted by default.
We can advise the best way to proceed. If a debt is owed by a company, alternative measures by way of a statutory demand can be used.
If the debtor disputes owing all or some of the debt then, depending upon the size of the debt, court procedures to resolve the dispute have been simplified. If the amount owed is under $10,000 then the Local Court will decide the dispute “on the papers” provided and no one needs to get into a witness box.
It is important that you have the necessary records to prove who owes you the debt and what is owed.
These disputes can cause a great deal of stress and worry, and can be over things such as dividing fences, the need for temporary use of your neighbour’s land to carry out construction or repairs to your property, or a tree on your neighbour’s land that is causing damage to your property. We will always endeavour to help minimise the stress this can cause and if the dispute escalates into violence and/or threats and harassment then an apprehended personal violence order can be applied for to restrict the behaviour of people. (See our going to court section).
Many of these disputes can be decided, usually by the Local Court in your district. Sometimes the Court may require parties to endeavour to resolve the dispute by alternative methods before actually hearing the dispute. The community justice centre is an excellent vehicle to try and resolve some of these disputes before they get out of hand (www.cjc.nsw.gov.au).
You may end up in dispute with an insurance company. There can be many reasons for this – damage to your motor vehicle or your property, or if it is alleged you have damaged someone else’s property. It could also be over refusal to pay a claim for damage or under a personal sickness or life insurance policy.
The law puts certain limits on how an insurer must deal with you and what it must do in refusing a claim. It may ultimately be that a court has to interpret your insurance policy and decide if your insurer or someone else’s should pay. Time limits apply in going to court.
Again alternative measures should be considered before going to court. The Financial Ombudsman Service (www.fos.org.au) is a dispute resolution body set up to try and resolve financial (banking) and insurance disputes. The decision of the financial ombudsman is binding on the insurer but not on you. Certain conditions apply in using the financial ombudsman but the use of his services is free. Our lawyers can help you with lodging your dispute with the financial ombudsman or a court.
Superannuation Funds often have an insurance benefit payable upon the death or permanent disablement of a member.
Payment of any funds is usually decided by the Trustee of the fund. Disputes can arise with the Trustee. These disputes typically revolve around:
- Who should receive the proceeds of the superannuation contributions and/or insurance benefit on death.
- Whether or not you are permanently disabled as defined by the superannuation Trust Deed.
- Whether or not a fund is required to pay out contributions before reaching retiring age.
- We can provide help with any of these disputes. Again a court can decided these disputes but it is recommended you first use the services of the Superannuation Complaints Tribunal in attempting a resolution of the dispute. The Tribunal’s services are provided free and they have expertise in helping all parties come a resolution which is palatable to all (www.sct.gov.au). Again there are strict time limits in applying to the Tribunal.