What is an investigation summons?
The creditor has had judgment entered against you. The summons is a court document requiring you to attend court on the date and time listed on the form. The hearing will be to look at your financial position to determine whether you are able to pay the debt and if so, how you will pay it [see Enforcement of Judgments Act 1991 s 4].
A financial counsellor can assist you in filling out the form showing your income and expenses, which is included with the Summons. The services of a financial counsellor are free, and they are very experienced at doing this work. You can contact a financial counsellor on 1800 007 007. Try to do this before you go to Court, so that you are not trying to think of your expenses and income under pressure.
What if I do not attend the hearing?
If you do not attend within 15 minutes of the appointed time and wait until your case, the creditor may ask the court to issue a warrant for your arrest. Then a Sheriff will contact you to arrange for you to attend the court for a further hearing. It is not like a criminal arrest, but you will be required to attend Court and additional costs get added to your debt.
If you cannot attend Court because of illness or other unforeseen circumstances, you need to contact the Court in advance. However, putting off going to Court will not address the problem and the debt will not go away on its own. You are better off going to Court and trying to work out what is feasible to pay the amount owing.
I don’t owe the debt. What can I do?
As noted on the summons “You may apply to the trial court to set aside this judgment if you have an arguable case.....” This means judgement was entered against you because you did not file a defence within 21 days of the service of the claim. If you now wish to dispute the debt you can talk to the court registry (phone 8204 2444). They can advise you about the forms to fill in to get the judgment set aside so that your dispute will be looked into. However, you need to explain to the Court why you did not file your defence within the required time as well as demonstrating that you have a good defence. This means that your defence must be valid, and not just because you cannot afford to repay the money owing.
You can also call our free Legal Help Line on 1300 366 424 for advice.
What is proof of service?
For enforcement procedures the court requires proof that the summons has been served on you personally by the Sheriff [see Enforcement of Judgments Act 1991 s 4(3)]. The person who served you must complete an Affidavit of Proof of Service which is sworn before a JP or solicitor.
This is the first I have heard about this debt. What can I do?
You should have received a Claim (Form 3) at least 21 days (but this period is usually much longer) before receiving the Investigation Summons from the Court. The Investigation Summons must be given to you personally.
Phone the court registry on 8204 2444 quote the action number (top right hand side of the summons) and ask for details regarding the service of the claim, and the address where it was served. You may have received the Summons in the post, or someone handed it to you personally. You can ask to look at the Affidavit of Proof of Service form which is on the Court record to find out how the creditor served you, if the claim did not reach you. You may be able to have the judgment set aside if there is a legitimate defence and you can explain why you did not know about the Claim.
I owe the debt. What can I do?
It is not too late to try and negotiate a payment arrangement with the creditor before going to Court on the Investigation Summons. If you need help contact a financial counsellor and it is free to see one. If the creditor or debt collector will not talk to you or wants more than you can afford then you will have to go to Court.
What happens at an Investigation Hearing?
The purpose of the hearing is to look at your financial position to determine whether you are able to pay the debt and if so, how you will pay it.
This hearing is called a ‘closed court hearing’ which means that when you enter the courtroom the only other people in the room will be court officials and the creditor. Sometimes small business or individual creditors will represent themselves at court. Larger businesses will pay a para legal to do this for them. The most important court official is the Registrar, an officer of the court who has certain limited powers to make decisions and court orders. You will be required to give sworn evidence about your ability to pay, and you are required to be truthful about your income and expenses, as well as your assets.
You cannot argue whether you owe the money or not at this hearing. If you get to this stage and you don’t think you owe the money you should tell the Registrar at the beginning of the hearing. Your hearing may then be adjourned to allow you to file your application to set aside the judgment. See above "I don't owe the debt. What can I do?" or Disputing a debt for additonal information.
The Registrar will make sure that you and the creditor are treated fairly. His/her duty at the hearing is to make a court decision about the next step.
How can I prepare for the hearing?
There will be a financial statement (also known as an Income and Expenditure Form) attached to the summons. It is very important that you complete the financial statement with all your income and expenses and take it into the hearing with you.
Note: The Income and Expenditure Form asks you to include any income from your spouse/partner. If you include this income it is very important that you also include all of the expenses and debts that you and your spouse/partner have.
Do not be afraid to seek help. Contact a financial counsellor as they can help you prepare the form, and explain the court process to you and provide support and information on your rights and what you can say when you get into the court hearing. Courts sometimes have financial counselling services available, so take advantage of this service, or you may like to ring 1800 007 007 to get further advice and help.
The court can only make an order for payment on what money you have left after the necessary living expenses for you and your family and other debts have been paid [see Enforcement of Judgments Act 1991 s 5(3)]. If you cannot afford to make any repayments, your income and expenditure statement will need to show this. The court will not make you pay more than you can afford even if the creditor wants more.
What can I say in court?
You can make an offer of instalment payments of a certain amount per fortnight or month or a lump sum. This should be an amount that your financial statement shows that you can realistically afford.
You can ask for an adjournment to
- seek advice from a financial counsellor or a legal representative
- negotiate further with the creditor
- consider other options such as bankruptcy or selling an asset
- increase your income from paid employment
- explore other payment options or
- apply to have judgment set aside (see 'Disputing a debt').
You can say that you cannot pay because you have no money after living expenses and other debts (your financial statement would show this) or because your only income is from a Centrelink pension or benefit. It is very important that you speak openly if you cannot pay and do not agree to a repayment amount just to get out of the court. This will cause problems later. Remember though the creditor may have other options to recover some debts e.g. councils can force the sale of home for council rates arrears or can wait until property is sold.
What decisions or orders can the court make at an Investigation Summons hearing?
The Registrar can make a number of decisions or orders that include:
- an order that you pay the debt immediately or within a specified time (if you have the means to pay)
- an order that you pay the debt by instalments
- adjourn the matter
The Registrar may also make no order at all.
Make an order for payment by instalments
If your financial statement indicates that you can afford to make payments of the debt the court will issue a payment order with specific amounts and due dates (e.g. fortnightly or monthly instalments to the creditor until the debt and costs are paid).
Once a court order for payment is made you must make the payments exactly as ordered until the debt is paid off as well as any court fees and interest. If you miss any two payments ** the creditor can take further action against you that will result in additional court and creditors costs and interest being added to the total debt. You can always pay more but not paying a court order for the higher amount will have serious consequences.
Missing payments is considered to be failing to comply with a court order – the creditor can then take further action including requesting the court send a summons to you to appear at an Examinations Hearing [see Enforcement of Judgments Act 1991 s 5(5)].
** Note: This means any two payments not two payments in a row.
Make no order
The court cannot make an order that would put you into financial hardship. This means that the court accepts that your income and expenditure statement clearly shows you cannot make any repayments or that your only income is a Centrelink payment and you do not agree to offer any payments.
If your situation is unlikely to change the Registrar will not make an order but will set another court date for a time in the future, e.g. 3-6 months ahead, to review your financial position. You still legally owe the debt but are not required to make payments during this time.
You will then have to attend the next hearing with an updated financial statement. If there has been no change then the court still may not make an order. However, If, your income has increased or expenses decreased e.g. you were on a Centrelink benefit and now have income from paid employment then you may now have capacity to pay the debt and an order could be made.
The creditor can still issue a bankruptcy notice or put a charging order over property you own, which restricts the sale of your property without payment of the debt.
Adjourn the matter for further investigation or advice
A short adjournment may be made to give you the time to gather further evidence or information about your finances or to seek legal or financial counselling advice. See above for the reasons you might ask for an adjournment.
The debt does not go away if this happens.
What if I cannot pay a Court Order?
If you find you cannot make a court ordered payment you must apply to the court to change or stop a court order. You should either contact the court registry on (8204 2444) and let them know immediately or get in touch with the creditor and tell them. The court will then review your financial circumstances. This will also stop the creditor taking any further action against you and avoid further court appearances and additional costs being added to the total debt.
You also have other options such as filing for bankruptcy yourself (see 'Paying a debt') but you need to think very carefully about if this is the right thing to do because it has far reaching consequences which you may not understand. Get some legal advice from the Legal Helpline 1300 366 424 or get in touch with a financial counsellor before taking this step.
What if I want to make a complaint about the Court?
If you have a complaint about the way you were treated by a court official for example use of insulting, racist or sexist language you could complain to OmbudsmanSA.
Telephone 08 8226 8699 Toll free 1800 182 150 (outside metro) Email firstname.lastname@example.org or the Courts Administration Authority, (08) 8204 2444,GPO Box 1068, Adelaide SA 5001 or email@example.com
I missed payments and have an Examinations Summons – what happens now?
If you miss making any two payments the creditor can ask the court to issue a summons to appear at an Examination Hearing [see Enforcement of Judgments Act 1991 s 5(5)]. At this hearing you will have to explain why you have not made the payments. The court will want evidence of your financial circumstances again and will want to know why you did not make the payments or inform the creditor.
Following the Examination Hearing the court has three options:
Order you to pay the arrears and continue the ordered payments
If the court determines that you had no good reason to miss payments they may order you to pay all missed payments as well as the original ordered payments.
It is important to make sure you do not commit to a payment order that you cannot afford. Be very clear with the court if you cannot afford to make any payments or if your financial situation has changed since the first order was made.
Missing more payments will be a breach of a court order and could lead to a Warrant for Commitment (Prison Term) [see Enforcement of Judgments Act 1991 s 5(7)]. The debt will remain.
Issue a new court order or no order
If your financial situation has changed since the first order was made and you cannot afford to make any payments or your only income now is from a Centrelink payment the court may make no order. The debt does not go away – you may be asked to return to court at a later date to review your capacity to pay.
The court may make alternative arrangements for payments depending on the evidence you raise at the hearing about changed financial circumstances or financial hardship.
Issue a Warrant of Commitment (Prison Term)
Although rarely issued, the court has the power to issue a warrant of commitment (prison term) for up to 40 days if you fail to provide good reason why you stopped making payments as ordered by the Court [see Enforcement of Judgments Act 1991 s 5(7)]. You are considered to be in contempt of court. The debt remains and you will still have to comply with the court orders. A Warrant of Commitment is issued by the Court, and not by the judgment Creditor.
I have been given a Summons to Witness for a Company Debt - what should I do?
A company officer (director or secretary are examples of company officers) can be summonsed to appear in Court to explain how a company can pay a judgment debt. You should bring information about the company's financial situation, including bank accounts, tax returns or financial statements to provide to the Court.
If your company has ceased trading or has no money to pay the debt, you (as the director or other officer) cannot be made responsible for payment of the debt. It is only the person or company against whom the judgment has been given who is liable for the debt. If your company is struggling to pay its debts, you need to get professional accounting advice quickly because of your duty as a director to avoid trading whilst insolvent.
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.