The Law Handbook 2024

352 Section 5: Managing your money served with the writ you usually only have 10 days in which to enter an appearance, and usually a further 30 days to enter a defence. No enforcement action can be taken by the mortgagee during these periods. If you do not enter an appearance, however, the court may by default enter judgment upon expiration of those 10 days. This judgment will be enforced by the court issuing a warrant of possession, which is passed to the Sheriff’s Office. The warrant of possession gives the sheriff a right to take possession of the property immediately. However, standard procedure is for the sheriff to notify you of the need to vacate the premises (taking all of your belongings with you) before a certain date. The deadline is usually a Friday three weeks after the sheriff’s notification to you. The day before the deadline the Sheriff’s Office will telephone all parties to confirm that the sheriff is to go ahead with taking possession of the property or that the parties may have resolved the matter between themselves. Defences if you are sued Summary Defences if you are sued may include: 1 the contract or agreement does not comply with the appropriate legislation; 2 you are not a party to the contract; 3 you were not correctly informed about promised goods or services (misrepresentation); 4 you were under the age of 18 when you allegedly entered into the contract with the creditor; 5 the debt is too old and therefore statute barred (see ‘Statute-barred debts’, above); or 6 the contract is unfair or unconscionable. There may be other defences in your particular case. If you think that there are, seek legal advice. Defences in detail Contract does not comply with appropriate legislation You may have a defence if the contract or other related documents do not comply with the appropriate legislation. Seek legal advice to check this (see Chapter 2.4: Legal services that can help). Not a party to the contract Debts are not necessarily transferable from one person (or company) to another. If, for example, your father bought a car on credit and he died or disappeared before paying off the total amount, you would not be expected to pay off his debt. The debt is your father’s, and if you were sued you would have a defence. If you have not entered into a contract with the creditor that makes you personally liable for the debt, you are not liable and would have a defence. Misrepresentation If you agreed to buy goods or services on the basis of information that was supplied to you by the creditor or trader, and that information has turned out to be incorrect or inaccurate, you may have a defence. Under 18 years old If you are under 18 years old, a contract cannot be enforced unless it is for ‘necessary’ goods (i.e. food, clothing or transport) (see ‘Young people’ in Chapter 7.1: How contract law works). Old debts If the debt is more than six years old, you may have a complete defence to the creditor’s claim (see ‘Statute-barred debts’, above). Unfair contract You may have entered into the contract in circumstances that make the contract unfair or unconscionable. This can be a defence to an action by the creditor. Ask yourself: 1 Did you understand the nature of the contract? (I.e. Do you understand English, or the details of how the contract works?) 2 Were you subjected to undue influence from the creditor? This may occur especially where the two parties to the contract have a particular relationship (e.g. doctor–patient, parent–child), or if there were threats of unlawful acts (i.e. a threat of violence used to coerce a person to make the agreement). 3 Did you think part of the contract was unfair? In addition to a possible defence, an unfair credit contract may be reopened in the Federal Court, or the Federal Circuit Court, or the Supreme, County or Magistrates’ Courts of Victoria.