Small business debt collection is an unfortunate but vital part of running any small business in Queensland.

If you offer goods and/or services on credit, then you will have experienced the stress and time constraints with attempting to recover these bad debts yourself.

A small business debt collection lawyer can give you advice and assistance you need to reduce the stress of having to recover bad debts from your customers/clients, and also free-up your valuable time to actually get your work done!

Our debt recovery lawyers have written this article to give you industry tips for your small business debt collection, and also answer the most common questions.

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Small Business Debt Collection

There are a number of things that you can do before you even enter into an agreement with a bad paying client/customer in relation to small business debt collection.

Terms and Conditions

Ensure that you have air-tight terms and conditions.  Correctly drafted terms and conditions will not help much if a debtor decided not to pay the invoice, however a good credit application or contract will maximise your chances of recovering the debt.

Good terms and conditions in a credit contract will correctly identify the parties, correctly identify a breach, and then correctly identify the remedies available to you as a result of the breach.

With good terms and conditions in a credit contract, you will be able to recover your debt collection and legal fees, prescribe a default interest rate, and take security for the debt.

Always ensure that you have a fully executed credit contract with enforceable terms of trade before you offer any goods and/or services on credit.

Conduct Credit Report Checks

Before you agree to provide your goods and/or services on credit you should do your due diligence.  Part of the due diligence procedure is to conduct credit report checks on the customer.

A credit check can be provided by a number of different credit reporting companies.

However, you can also get a credit report on a company by getting a current extract from ASIC.  The ASIC current extract has a credit score but will also show any litigation commenced against the company, any defaults or judgments lodged against the company.

In relation to small business debt collection, a current extract will also ensure that you have correctly identified the customer / client in your credit contract, which is very important if they default.

Always Check Trade References

Part of the application process should include a number of trade references.

A trade reference is a company / business that your potential credit applicant has already conducted business with on credit.

We always recommend getting at least two (2) trade references and contacting those references to ensure that your customer / client pays their debts.

Always check trade references – they might say “they are sometimes a bit late, but they always let us know and make the payment when they can”.

This might be good enough for you to engage with them, but at least you know that before entering into the agreement.

Ensure Proper Record Keeping

You should ensure that you keep proper records of all of the above.  There is no point going through the small business debt collection process above, only to not have a copy of the contract when it comes time to sue.

Keep the original credit agreement, the ASIC search and/or credit report, the trade references, and any other information safe.

We would also recommend keeping digital copies of the above also.  You would be surprised how many people come to us alleging breach of contract, but do not have a copy of the contract.

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Small Business Debt Collection Process

If you do the above, then it will likely make the small business debt collection process less expensive, and less time consuming.  However, inevitably as a small business offering goods and/or services on credit, you will have to recover debts from clients who have not paid their bills.

This section outlines the small business debt collection process.

Call Your Customers Who Owe the Debt

Initially, upon default – for example seven (7) days after issuing the invoice as per your terms and conditions – give the debtor a call to see why they haven’t paid.

It might be that they have genuinely forgotten, or did not receive the invoice, or another genuine reason why it has slipped through the net.

If they agree to pay, then always give the debtor a time and date on which the debt must be paid by.  Diarise that date, and then follow up on that date if the debt has not been paid.

TIP – Never leave the payment terms open-ended. Always give a time and date on which a payment needs to be made.

Whether you make one or more telephone calls to a debtor, you should always remember to do the following:

Document Everything

Have a notepad and paper and write everything down.  If they say anything, write it down.  If you make any agreements, write it down.  If they make further promises to pay, write it down.

This is important because you might need to rely of any representations made at a future date, and if you have documented it sufficiently, then this makes it a lot easier.

Going one step further, once the conversation has ended, send the debtor an email confirming what you spoke about, and any agreements made.  This email will include the exact time and date and will be good evidence if you need to rely on it in the future.

Stay Cool, Calm and Collected

There is a great old saying:

“You catch more flies with honey than you do with vinegar”

Yes, it feels personal when a debtor does not pay their invoice, but it is not personal, it is just a commercial problem.

If you get upset or personal on the telephone, or raise your voice, or react to something that the debtor says, then it may only hinder the process rather than helping.

Avoid Harassing the Debtor

There are a number of small business debt collection guidelines which say that you are not allowed to harass or hassle a debtor in relation to collecting your small business debt.  You must not:

1. Unreasonably harass or hassle the debtor;
2. Mislead or deceive or attempt to mislead or deceive the debtor;
3. Act unconscionably toward the debtor – take unfair advantage of any vulnerability or disability; or
4. Use any physical force or coercion against the debtor.

Stay Polite & Professional

Remember that this is a purely commercial matter and you should conduct yourself in a professional and commercial manner.

Find Out the Reason for Non-Payment

You should attempt to gauge the reason for the default.  The business might be having some short-term cash-flow problems, or someone could have been sick, or any number of other reasons.

There is a difference between a debtor who can’t pay and a debtor who won’t pay.

If you can gauge the reason for the breach, then it might help you to decide how to progress the matter forward.  However, debtors do not tell the truth so you should be prepared for all kinds of excuses.

Be Prepared for Excuses

We hear all kinds of excuses!  I didn’t get the invoice, we put in the wrong account number, they are waiting for a payment to come in, etc.

Be prepared for the debtor to make an excuse and prepare an answer.  Instead of treating these as excuses, treat them as problems that you can provide a solution to.

For example, if they say that they did not receive the invoice, send it to them by email while they are on the phone – then ask them if they received it.

Ask for a Good Faith Gesture

At the end of the call you should ask for a good faith gesture.

A payment toward the debt is a good thing to request because it shows that the debtor acknowledges the debt and indicates that the debt is not disputed.

If you do not get any luck from your phone calls, then you should start sending reminder letters.

Reminder Letters of Emails

Sending reminder letters or reminder emails is the next step in the small business debt collection process.

The general rule-of-thumb is that you give a debtor three (3) reminders that the debt is overdue.

You should resent the invoice with the reminder letters so that the debtor cannot say that they did not know what to pay, or how to pay, etc.

Save copies of the letters or emails in case you need to rely on them in the future, and also save any replies that you get after sending them.

Use Multiple Methods

It might be possible that a debtor company do not check their post office box for example, and so you should use a few different methods to try to get these letters in front of the debtor.

Send by mail using express post to prove delivery.  Send by email and request a delivery and read receipt.  If reasonable, you can send a text message – for example if you have communicated with the debtor by text prior to default.

Another avenue would be to send the unpaid invoices and the reminder letters to the accounts department of the debtor company, then follow up with a telephone call.

Diarise all attempts to deliver the reminder letters.

Gradually Increase Directness

If you send three (3) reminder letters, then you should increase the directness with each letter.  The first should be a friendly reminder, the second less friendly and more formal, and finally the last reminder letter should be the most formal letter before the formal letter of demand.

If you still get no response from your reminders, then you may have to get serious and send the debtor a letter of demand.

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Letter of Demand

A letter of demand is the first step in the debt recovery process.

The final letter of demand demands payment and foreshadows the action that you intend to take if the debtor does not pay or attempt to make repayments.

There are a number of things that you should include in your letter of demand.

Write Clearly and Professionally

You should spell out the particulars of the small business debt collection matter in the letter of demand, including all the attempts that you have made to recover the debt.

Clear, professional, and succinct communication is one of the keys to successful debt collection.

You can use bullet-points to date the list of chronological events, for example.

Know Your Rights

A letter of demand should spell out your legal rights and their legal obligations.

It is very important that you do not include a remedy available to you in law, that you are not entitled to.  It is unethical to foreshadow an action that you are not able to bring.

For example, you cannot foreshadow winding-up or bankruptcy if the debts fall below the statutory minimums.

You should always seek legal advice before threatening legal action.

Clearly Explain the Ramifications

You should clearly explain the ramifications of the action that you intend to bring if they do not comply with the letter of demand.

Bankruptcy and winding up have serious consequences for people in the building and construction industries, or real estate industry for example.

Also, explain the consequences of having a default registered against them.

Again, it is important not to foreshadow a consequence if it is not an available remedy.

Give Time for Compliance

A letter of demand must have a definite time for compliance.  You should say that payment must be made “on or before 5pm on XX November 20XX”.

If they do nothing, then you will likely have to commence legal action to recover this debt.

We have comprehensive information on letters of demand here

Attempt to Compromise and Settle

If you do not want to incur the costs of debt recovery then you should consider making an offer to settle the matter early, put it behind you, and getting on with your life.

If you are forced to go to Court to recover the debt, or write it off altogether, then you will not recover all of the costs of doing so.  So, you should consider compromising and accepting a lesser amount on a without prejudice basis.

For example, if your debt is $10,000.00 and you will be $3,000.00 out-of-pocket, then it is worth making an offer for around $7,000.00 now.  Although it may not seem like it, it is actually a great result.

We have information about settling matters early here.

Ask for a Counter-Offer

If you make a without prejudice offer to settle, then you should also ask for a counteroffer. 

This is essentially a negotiation, so the usual negotiation procedure should apply.  If you are prepared to compromise by $3,000.00 then you should come in by dropping $1,000.00 and asking that the debtor make a counteroffer.  They might offer a $2,000.00 reduction for example and you can accept that offer.

We advise using a lawyer to negotiate on your behalf on a without prejudice basis.  Read our extensive article here about Settling Litigation Early.

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What else can a Small Business do?

There are a number of other things that you can do.  These include alternative dispute resolution, filing a default on the debtors’ credit file, and commence legal action.

Alternative Dispute Resolution

There are a number of alternative dispute resolution methods that you can use to attempt to resolve your dispute.

You can attempt to mediate the debt dispute. This involves meeting with the debtor and a mediator and attempting to reach an agreement.

You can attempt to conciliate the agreement or engage an arbitrator to decide the debt dispute.

Read more about alternative dispute resolution on the Queensland Law Society website.

Lodge a Default on the Credit File

If you meet the criteria, then you might be able to lodge a default on the debtors’ credit file.

This means that anyone who does a credit check will be notified that they defaulted on your debt.  This will stop this debtor from doing this again to someone else and may also encourage the debtor to pay your debt, rather than having this on their credit file.

Seek Legal Advice

If all else fails, you should consider getting legal advice from a dedicated debt recovery and insolvency lawyer.  We specialise in debt recovery for small businesses, SME and corporate debts in Queensland.

A debt recovery lawyer will be able to advise you on the commercial realities of your debt recovery matter, and give you advice and assistance with your debt recovery matter and the enforcement of money orders.

FAQ Small Business Debt Collection

See below for the most asked questions in relation to small business debt recovery.

Are all debt collection services in Australia the same?

No!  There are a number of different debt collection services. From no collection no fee single person debt collectors, to debt collection practises in large law firms and everything in between.

We specialise in debt recovery, the enforcement of money orders, and insolvency.

Are Debt Collectors only for Large Companies?

Not at all.  We specialise in small business debt collection and SME debt collection.  However, the commercial realities of debt collection for small businesses may make it too expensive.

Are my Debts Are too Small?

We do not have a minimum requirement for the amount of the debt that we can attempt to collect.  However, the commercial realities of engaging a debt collection lawyer to recover a small debt may not make it a viable option.

It is not commercially sound to spend $5,000.00 to recover a $5,000.00 debt.

Are there any Additional Costs?

It depends what you instruct us to do.  There are a number of third-parties that will require payment on top of our fees.  Process servers, Court bailiffs, filing fees, express post, etc.

Can a debt be too old to recover?

Yes, six (6) years.  The Section 10 of the Limitation of Actions Act 1974 (QLD) states that:

The following actions shall not be brought after the expiration of 6 years from the date on which the cause of action arose … (a) … an action founded on simple contract or quasi-contract

The cause of action arises in contract upon the breach of contract.

However, the six (6) year accrual can start over again.  Section 36 of the Limitation of Actions Act 1974 (QLD) states that:

Where a right of action has accrued to recover a debt or other liquidated pecuniary claim … and the person liable or accountable therefor acknowledges the claim or makes a payment in respect thereof, the right shall be deemed to have accrued on and not before the date of the acknowledgement or the last payment.

Can I add Collection Costs to my Debtor’s Overdue Invoice?

There is no legal right to recover the debt collection costs unless that right is contained in your credit agreement or contract.

A carefully worded contract can allow you to claim a lot more than you would be ordinarily.  This is why we always recommend getting a credit contract before offering credit to your clients.

Can I Recover Legal Costs if I Sue Someone?

The Court will usually award costs to the party who is successful in the litigation.

However, the costs awarded at a trial will not represent the actual amount of the legal costs actually spent.  You will usually only be able to recover between about 30% to 80% of the actual money spent.

Can I Refer my Debt if I don’t have any Details?

Yes, you can.  This happens quite a lot.  In debt recovery matters involving unpaid rent, it is quite common for the debtor/tenant to be evicted and not provide a forwarding address.

We can conduct a number of searches including vehicle registration searches, and other online databases to attempt to find the debtor.

We can also refer the matter to a private investigator who can perform a skip trace.

Do Debt Collectors Harass People?

I don’t know!  All I can say is that we absolutely do not.

We reasonably, and professionally recover the debt without ever harassing people.  We are lawyers, and as such we have an ethical obligation to our clients, but also self-represented people such as debtors.

How do I Submit a Debt for Collection?

We have an online debt collection portal where you can provide us with all of the information that we need, and also upload all of the documents that we require.  Upload your debt here.

How much does it Cost?

It really depends on the conduct of the debtor.

If the debtor is reasonable and agrees to pay, then just the cost of the initial consultation and letter of demand.  However, if the debtor does everything in their power to make things difficult, then the costs may escalate.

However, at every stage in the proceeding we give you advice, present to with legal options, outline how much each choice will cost, and let you make that decision.

How Overdue Should my Debt be?

It doesn’t really matter, as long as it is overdue.

However, thought should be given to attempting some small business debt collection yourself before instructing small business debt collection lawyers.

Are Lawyers Better at Recovering Debts?

Yes.  Debt collectors are good, but they can only get to a certain point before they are unable to collect.  Debt recovery lawyers can assist right from the start, through the negotiation process, through the Court or QCAT process, through to the enforcement and insolvency process.

Should I Accept a Payment Plan?

Although this might sound counter-intuitive, as a litigation lawyer we always encourage people NOT to litigate.  Litigation is stressful, expensive, and time consuming.  If you can settle on an amount that you are comfortable with, then we would mostly encourage that.

It depends on the strength of your case, the default clauses in your contract, the debtor’s financial position, and a number of other factors.

However, on the most part, we recommend attempting to resolve your debt recover matters by instructing a debt recover lawyer to negotiate on your behalf.

Do I go to QCAT or the Magistrates / District / Supreme Courts?

It is up to you.  If you have a debt less than $25,000.00 then you can commence proceedings in QCAT or the Magistrates Court.  There are advantages and disadvantages to both.

If you have a debt between $150,000.00 and $750,000.00 then you must commence proceedings in the District Court.

If you have a debt over $750,000.00 then you must commence proceedings in the Supreme Court.

What Information do I need to Provide to you to Collect a Debt?

We need proper instructions to act for a client in a debt recovery matter.  At a minimum we will need proper particulars on the creditor, the debtor, the contract or credit agreement, and particulars of the debt and the breach of the contract.

The more information you can give us, the better.

What types of Businesses use Debt Recovery Lawyers?

Any and all businesses will at some time need to recover debts.  Especially businesses that offer goods and/or services on credit to a customer / client.  Small business debt collection is just part of doing business.

We also have a lot of clients in the building and construction industries, or parallel businesses to the building and constructions industry.

Where do you Provide Debt Collection Services?

We operate our small business debt collection services in Queensland.  However, we can serve debtors in all States and Territories in Australia.

We also practise in the Federal jurisdiction, bankruptcy and liquidation for example, and so we are able to practise Australia-wide.

Will I lose my Client if I Engage a Debt Collector?

Maybe!  But do you want a customer who doesn’t pay their bills?

We are professional, ethical, and commercial in all of our dealings with a debtor or a debtor’s solicitor.

Debt Recovery can be a time consuming but necessary part of running a business in Queensland.

By failing to prepare, you are preparing to fail – Benjamin Franklin

Debt recovery in Queensland can be made a lot easier with specially drafted contract clauses.

If you run a business that offers trade credit to your customers, then it is vital that you have properly drafted contract clauses in relation to the recovery of debt.

A properly drafted credit contract by a qualified debt recovery lawyer can assist with the debt recovery process and can even elevate you to the status of a secured creditor. This is especially helpful in the event of insolvency.

Some must-have clauses in your credit contract include:

1. A charging clause;
2. A director’s or personal guarantee;
3. PPSA charging clause; and
4. Default terms.

Charging Clause

A charging clause requires the debtor to secure the debt with an equitable interest in property (most likely Real Property or Land). This equitable interest is created from the charge and makes the creditor an equitable mortgagee, elevating the creditor to the status of a secured creditor.

This charge is a charge over company property (if any) but can also be a charge over the director’s personal property.

A charge over property is essentially a guarantee that in the event of a default, the creditor’s equitable interest in the debtor’s real property is realised and the debtor can take steps to satisfy the debt as equitable mortgagee.

Charging Clause Example

There is a lot of case law on this subject, and the wording of the charging clause may vary, however a typical charging clause example will read something like:

By entering into this credit agreement, you agree to charge in favour of XXXX, all your estate and interests in any land which you have or may later acquire, with payment of all monies that you owe to XXXX, presently or into the future.

The main advantage in having a charging clause in the credit agreement or contract is that a charge over real property has a higher priority in insolvency than an unsecured director’s guarantee.

Effectively this makes the caveat holder (or equitable mortgagee) a secured creditor.

Lodge a Caveat over the Debtors Property

A properly worded charging clause over the property of the company or the director(s) of the company allows for the creditor to lodge a caveat over the property of the company or the director(s).

Only a person with a caveatable interest can lodge a caveat in Queensland, an equitable mortgage or charge is a caveatable interest.

In Queensland, a caveator has three (3) months or fourteen (14) days after being served with a notice pursuant to section 126 of the Land Title Act 1994 (Qld) to start a proceeding in a court of competent jurisdiction to establish the interest claimed under the caveat.  Section 126 says:

A caveatee of a caveat to which this section applies may serve on the caveator a notice requiring the caveator to start a proceeding in a court of competent jurisdiction to establish the interest claimed under the caveat.

This means that the creditor company (caveator) has the legislated timeframe to apply to the Court for an order establishing the caveatable interest.

During this time, the effect of the caveat is such that the debtor cannot sell or transfer their interest in the land until such time as the caveat is removed.

Debt Recovery Enforcement

There are a number of different ways that a creditor can recover their debts from this point in matters of debt recovery in Qld.

The creditor may agree that the debtor may privately sell the real property and have a bank cheque for the outstanding sum at settlement (in exchange for an executed release of caveat).

Alternatively, a creditor with a correctly lodged caveat with an order of the Court is in a fantastic negotiating position, and may wish to enter into some other arrangement secured by the caveat, and the threat of selling their family home.

Another great clause to include in your credit application or contract is a director’s guarantee.

Director’s Guarantees

Essentially, a company (the creditor) enters into a contract with another company (the debtor) and the director(s) of the debtor company personally guarantees the outstanding debts owed by the debtor company (the guarantor), making the debt recovery process easier.

This means that if the company does not meet its obligations, then you are able to recover from the company and the personal guarantors of the company.

In a number of cases, the company that you are trading with may simply be trading as a small business with no real assets.  In this instance it is best to secure the obligation of the company with the personal assets of the director(s).

However, you might also be able to use a Personal Property Securities Act 2009 (Cth) (“PPSA”) to secure your property by lodging a charge on the Personal Property Securities Register (“PPSR”).

PPSA Charging Clause

The PPSA is legislation about security over personal property.  Similar to how a caveat attaches to real property, a security interest, registered on the PPSR, creates a security interest and attaches to personal property (other than real property).

A typical example would be a car finance company lodging a charge on the PPSR over the car to which the finance relates, as security for the loan.

So, if you provide goods on credit, then a PPSR charging clause allows you to charge those goods until payment for those goods has been made.

The PPSA allows a creditor in this situation to seize the goods (Collateral).  Section 123(1) of the Personal Property Securities Act 2009 (Cth) says:

A secured party may seize collateral, by any method permitted by law, if the debtor is in default under the security agreement.

PPSA law is very complicated, and we strongly advise getting legal advice from a suitably qualified legal practitioner before attempting to seize your goods

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Can you Recover your Legal Costs

There is no legal right to recovery of your debt collection and legal costs, unless awarded by the Court or tribunal, prescribed by legislation, or unless allowed for in your credit contract.

Carefully worded default clauses in your credit contract may allow you to recover most of your legal and debt collection costs.

Some examples of some good default clauses would be:

1. Default Interest – allowing you to claim a higher rate of interest on all outstanding debts;
2. Legal Costs – allowing you to recover all reasonably incurred legal costs on the indemnity basis;
3. Debt Collection – allowing you to recover all non-legal costs in relation to debt collection;

Please speak to our lawyers in relation to your debt recovery clauses in your credit contract.

What is a Typical Debt Recovery Scenario?

A typical debt recovery in Queensland scenario might look something like this:

1. The creditor and debtor companies enter into a contract to provide goods and services on credit, with the directors of the company guaranteeing the debts of the company by signing a charge over their personal real property as a security for the debt;
2. The debtor company defaults on the debt;
3. A demand can be made to the debtor company and the director of the debtor company under the director’s guarantee, and a caveat lodged over the director’s real property.

The Effect of Insolvency as an Unsecured Creditor

If the debtor company goes into liquidation, the creditor can usually no longer commence or sustain proceedings against the debtor company for the payment of the unpaid and unsecured debt. This then triggers the director’s guarantee.

If the director of the debtor company has guaranteed the debts of the company, then the action may be brought the director as guarantor. If the director of the debtor becomes bankrupt, the creditor can usually no longer commence or sustain proceedings against the debtor director as guarantor of the unpaid and unsecured debt.

Without charging clauses in the contract, the creditor is effectively an unsecured creditor and will have to get in the queue behind other creditors with priority, and wait for a dividend (if any) from the liquidated estate of the company and/or the bankrupt estate of the director.

An unsecured creditor will not be able to commence or continue with legal action against an insolvent company pursuant to section 471B of the Corporations Act 2001 (CTH) which says:

While a company is being wound up in insolvency or by the Court, or a provisional liquidator of a company is acting, a person cannot begin or proceed with:

(a)  a proceeding in a court against the company or in relation to property of the company; or

(b)  enforcement process in relation to such property;

except with the leave of the Court and in accordance with such terms (if any) as the Court imposes.

The Effect of Insolvency as a Secured Creditor

With a charging clause and a caveat, the debtor company will be a secured creditor and will usually have priority over unsecured creditors.

Alternatively, if the debtor company goes into liquidation, then a creditor who has an interest secured by a charge at the commencement of the liquidation, and has elevated themselves to the status of a secured creditor, can take advantage of section 471C Corporations Act 2001 (CTH) which says:

Nothing in section 471B affects a secured creditor’s right to realise or otherwise deal with the security interest.

In MSI (Holdings) Pty Ltd v Mainstreet International Group Ltd [2013] QCA 27 Gotterson JA with whom White JA and Applegarth J agreed said:

The expression “security interest” is defined in s51A to have a meaning which includes a charge.

Section 9 of the Corporations Act 2001 (CTH) defines “charge” as:

“charge” means a charge created in any way and includes a mortgage and an agreement to give or execute a charge or mortgage, whether on demand or otherwise.

So a charge is a security interest, and as such section 471B does not apply to the security interest, and the secured creditor is allowed to realise that interest, even in the event of insolvency.

Further, if you have carefully drafted contract clauses relating to the default by the debtor, then you may be able to recover most of your debt collection fees, and legal fees.

This area of law is very complex and failure to adhere to strict legal requirements and time-frames may result in serious consequences.  Once again we strongly advise getting legal advice from a suitably qualified legal practitioner

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