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My husband and I have a business which incurred a debt to a

supplier when we had the...
My husband and I have a business which incurred a debt to a supplier when we had the business as a partnership(he and I were the partners). We also have a company of which he and I, are both directors. We have not traded under the company name with anyone, at any time. The supplier engaged a mercantile company to retrieve the debt (which we paid) but all documentation and correspondence received from them, was addressed to the company, not the partnership, including due date demands for instalments to pay off the debt. We did not meet those dates because even after informing the mercantile people of the error in their documents, they did not change anything. We informed them that since the company was not involved, their demands for due dates etc, may be null and void (hopefully, on our part). What we agreed to pay has been paid but yesterday we received a demand letter from the local Sheriff's office with an amount which is more than half of what we've already paid. It too, was addressed to the company. Our question is, are they able to make this demand of the company even though the debt was incurred under the partnership? (The business has reverted to being a sole trader as of 1/1/2013.)
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7/27/2013
Brisbane-Lawyer
Brisbane-Lawyer, Solicitor - Admitted 2005
Category: Australia Law
Satisfied Customers: 14,361
Experience: I did my law degree at the University of Queensland
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Our question is, are they able to make this demand of the company even though the debt was incurred under the partnership?

No, they can't. They need to sue the partnership, not the company.

My concern, however, is that they may have already got a judgement against the company. I suggest you contact the sheriff and ask him whether or not they have. If they have, you will need to apply to the Court to have the judgement set aside.

Should you have any other questions, please let me know.

If you're satisfied with the results of your question, then I'll ask you to please provide positive feedback so that I will get credit for the time spent on your question. Your question can continue even after you leave positive feedback, so if you have any follow up questions please don't be afraid to ask.
Brisbane-Lawyer
Brisbane-Lawyer, Solicitor - Admitted 2005
Category: Australia Law
Satisfied Customers: 14,361
Experience: I did my law degree at the University of Queensland
Verified
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Customer reply replied 4 years ago

Thank you very much! The letter is titled "Payment of Outstanding Judgement of Debt" and refers to a court case number a a writ for levy of property at Newcastle Local Court. Will we have to now apply through the same court to have this set aside?


 


(I have rated your response as excellent, thank you!)

Yes, you would have to apply to the same Court to have the judgement set aside. Obviously it will be up to a judge to determine whether or not that happens once he has heard both sides at the hearing.

Glad I was able to assist.
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