Getting the Right Help

Why is it so important to get the right help? The Act is a very powerful tool and in the wrong hands, it can have absolutely disastrous consequences if not done correctly.

​Solicitors

Do I need a lawyer? In our opinion, yes, you do, however, with an important qualification. You need the right lawyer. There is a common misapprehension about solicitors. They are not experts in every field. You would not believe how many enquiries we get from clients seeking advice after their solicitors completely ruined their applications or responses (we are talking about fundamental mistakes). Another common mistake (this may sound strange) is that a lot of lawyers treat SOPA matters as court cases, and they are simply not. While you most certainly can prepare and submit an adjudication application similar to an outline of submissions you would for a court hearing along with all the affidavits and evidence, this however will be extremely costly and will mean most claimants will steer away from legal help.

To give you an idea, a solicitor will charge anywhere $350-$650 per hour, and an average application will take approximately 25-40 hours to compile, the maths is simple, most claimants simply can’t afford it. ​​The important thing to understand is that usually, only a small portion of the argument deals with legal issues. Lawyers do not need to spend and subsequently charge you for their time by writing submissions that are related to technical matters. For example, the most appropriate rectification for ponding on the bathroom tiles and the costs to do so.

Getting the right solicitor to help at the right time is absolutely vital. You can greatly minimise the costs by doing some of the ‘leg work” yourself. For instance, don’t just hand it over to a solicitor and then wait for the result. Prepare your arguments, present and reference all the evidence (photos, emails, messages) and attempt to value your work (we can help you with all those), after that a solicitor will be required to spend a lot less time preparing your submission, so for example, 40 hours of legal work is reduced to 20.

Debt Collectors

Not much to be said here (actually, no, quite a lot), apart from making you do all the work and then just photocopying the submission (that you made) and then charging you thousands of dollars. Just to be clear, the new commercial agent (i.e. debt collector) licensing regime by the NSW Fair Trading in effect means that pretty much anyone with a pulse can call themselves a debt collector. If you have a minute, just have a look at the eligibility criteria on the Fair Trading Website. There are no qualification, education, insurance or experience requirements. This is because debt collectors are only allowed to do the very basic and simple procedures.

Firstly, some are not even real debt collectors. That is, not accredited in any way. Even if they are, debt collectors may not give you legal advice (see below). Debt collectors are allowed to assist in enforcing a court judgment only and only when one is obtained, generally demand that debt is paid by either demand letters or other means and serve legal and other documents on your behalf (but not to prepare them!).

​The classic response is, ‘well, we don’t give legal advice’ or ‘preparing an adjudication application is not legal work’. Clearly, they either absolutely have no idea what legal advice is or (most likely) they simply don’t care. Applying a set of facts of a specific situation and then advising on a course of action is what is called legal advice. To give you an example, ‘I have reviewed your payment claim, and in my opinion, you may apply for adjudication under the Security of Payment Act’ is legal advice. Another example, ‘in my opinion you may serve Section 17(2) notice’ is also legal advice. Only a solicitor with a local practising certificate can do that.

As a matter of fact, something as trivial as drafting a contract is considered as practising law (see Van der Feltz v Legal Practice Board [2017] WASC 2). It is somewhat obvious that preparing a payment claim, adjudication submission and submitting it all for you is legal work as the process involves interpreting legislation, applying it to your specific facts and then commencing a process that has legal consequences.

Once you make an enquiry, the following usually happens:

• You will be assured that you don’t need a lawyer, as they have done this for decades
• They win almost every case, and they often win against lawyers
• After a quick review of your circumstances, you will usually be all but assured of a great outcome
• You will be asked to pay for the whole thing upfront

Don’t take our word for it. Give them a call and try to arrange a meeting at their office, only to be given an excuse of why they will have to meet you somewhere else. Wonder why their websites have no current office address. Normally you will only see their address when searching on Google Maps, only because Google makes you verify your address prior to running an ad campaign, and usually, those addresses are different from the ones on their website. If you think this is strange, you are absolutely right. We would like you to show us a single real law firm that hides its address.

There are red flags everywhere. For instance, have a look at their reviews on Google. They all claim to have been operating for years, yet they only have a handful of reviews from the last year or so. It is possible to erase all your past reviews by delisting your business from Google Business Directory and then relisting it again sometime later. Even then, just look at some of the reviews. Several clients were charged thousands to print out and serve these applications, something which you can do yourself for free!

While you don’t necessarily need extensive legal knowledge to compile an adjudication application, the sad truth is that most of the self-proclaimed ‘experts’ out there have no tertiary qualifications of any kind. This is, however, not a question of knowledge, it is illegal to offer these kinds of services, and no, the fact that they were on TV does not make it legal. It just shows you that no one actually bothered to do simple checks on these people.

We don’t have a business address either, however, it is only due to the fact we are a small organisation without fixed business premises and work with our clients remotely or at the client’s locations. We are not claiming to be a “one-stop shop”. You will need legal advice, and you will immediately be directed to get such advice from a proper law firm should and when you require one.

Solicitors are governed by the professional rules of the Law Society (NSW), they have professional indemnity insurance (to protect their clients, i.e. you, from negligence), and they are governed by lawyer/client relationship, which encompasses things like confidentiality and ethics. With debt collectors, none of these applies. You will basically have no recourse if they are negligent or expose you to a legal liability which can cost you hundreds (yes hundreds) of thousands, see our Adjudication Page.

Yes, they may seem considerably cheaper than engaging a solicitor. However, ask yourself this, is my financial well-being worth risking over a few thousand dollars?