IDENTIFYING THE DEBTOR
It is crucial to correctly identify and name the legal entity which owes the monies. Our clients must decide which legal entity made the agreement to buy goods/services or loan money.
The most common kind of legal structures are set out below.
Company
If the debt is owed by a company, the full name of the company including the Pty. Ltd. (if it is a proprietary limited company) or Ltd. (if it is a limited company) must be included after the name. The Australian Company Number or A.C.N. should also be included.
Check these details by going to the Australian Securities and Investment Commission website at www.asic.gov.au. There is a free search option which allows the details of the company to be viewed. Our clients should check:
- the name & ACN of the debtor against the ASIC records
- whether or not the ASIC records show any external administration
If there is a group of companies which have related operations, it is important to decide which member of the group is actually owed the money, and to name that particular member company as the debtor.
Sole Trader
If the debt is owing by a person trading in their own name, the full name of that person must be stated:
e.g. JOHN PAUL DEBTOR
If the debt is owing by a person trading under a business name, both the full name of that person and the business trading name must be stated:
e.g. JOHN PAUL DEBTOR
(trading as JOHN PAUL DEBTOR PURCHASING)
Partnership
If the debt is owing by a partnership or firm of partners then each partner's full name must be stated:
e.g. JOHN PAUL DEBTOR & MARIA DEBTOR
(trading as JOHN & MARIA PURCHASES)
In the case of a partnership, each partner is liable for the debt, not just the partner who dealt with you. That means that each of the partners to the partnership must be entered into the data section of Pay Up!.
Multiple Defendants
Sometimes the debt is owed by more than one person or entity. It is important that each debtor is clearly identified as this has the potential to increase the chances of recovering the monies owed.
Where a loan is made to more than one person such as husband and wife, both borrowers should be named as Debtors.
e.g. JOHN BORROWER 1st Defendant
-and-
JENNY BORROWER 2nd Defendant
Where a person has given a guarantee that the debtor person or company will pay its liabilities, then both the debtor and guarantor should be named as defendants.
e.g. JOHN BORROWER 1st Defendant
-and-
JENNY BORROWER 2nd Defendant
Tips for Identifying Debtors
If invoices were issued in respect to the goods or services purchased by the debtor, look on the invoice for the name of the purchaser of goods or services.
If there is no documentation from the debtor at all and you are unsure of whether the debtor is a company, a partnership, or a sole trader, then the person who owes the debt will be the person who ordered the goods and services. This is particularly the case if this person made out as if he was ordering the goods/services on his own account.
If the debtor is a company or trades under a business name, then eCollect is able to undertake a search on the business or company name of the debtor in order to check that the description of the debtor is correct and to obtain the correct address for service. This must be before the issue of any court proceedings.
Ref: CLIENT INFO SHEET - Identify the debtor
Authorised by: James Woods
eCollect.com.au Pty. Ltd. Not to be reproduced without permission
Last Update: Thursday, 13 November 2008
