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August 15, 2012
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September 14, 2012

Debt collection alert! New notice delivery requirements.

Credit Providers: Before you can sue on any credit agreement, you must “deliver” to the consumer a National Credit Act notice of default.  There are several ways to accomplish “delivery”, and registered post is often chosen for its convenience and low cost.

Until now, a registered slip from the Post Office has generally been enough to prove delivery.  But all the slip proves is despatch of the notice, not “delivery” – so now (per a recent Constitutional Court case in which a notice had been diverted to the wrong Post Office) you also have to show that you have taken “reasonable measures” to bring the notice to the consumer’s attention.  And that, held the Court, would ordinarily mean proving that the notice was delivered to the correct post office by way of a “track and trace” print-out from the Post Office’s website.  Such proof of arrival in the correct post office is enough to prove delivery “in the absence of contrary indication”.

Consumers:  Where you have signed credit agreements (home loans, instalment sale agreements, etc) you will almost certainly have chosen a “domicilium citandi et executandi” service address, at which you will probably have elected also to receive legal documents by registered post.  Keep your creditors advised (in writing) of any changes of address.  If you don’t, you risk a default judgment against you even if, as happened in a recent High Court matter, an NCA notice had been “returned to sender” – i.e. it had presumably never actually reached the debtor.  In other words, when you choose a domicilium address, it’s up to you to ensure that you receive notices sent to it.

© DotNews, 2005-2012. This newsletter is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

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