I think a debt may have prescribed. What questions should I ask a debt lawyer?

How to use this guide

Send the questions with the agreement, complete account history, payments, communications and court papers. A useful consultation should produce a reasoned chronology and action plan, not merely a statement that the account is “older than three years”.

Questions about the debt and claimant

Begin by establishing what is actually being enforced:

• Who is the legal creditor now, and what evidence links that party to the original transaction?
• Am I, my company or a surety said to owe the amount, and are those liabilities being kept separate?
• What instrument creates the claim: contract, invoice, loan, judgment, mortgage bond, notarial contract or another source?
• Does the claimed balance reconcile capital, interest, fees, legal costs, payments and credits?
• If judgment is alleged, have we obtained the order, case number and service history?

These questions prevent a timing analysis from being performed on the wrong party, account or category.

Questions about the applicable period

Ask which paragraph of section 11 of the Prescription Act may apply and why. The Act includes periods of 30, 15, six and three years for different categories. Request a provisional answer if the original instrument or order is still missing, with a clear list of what would change the classification.

Also ask whether another statute supplies a special rule. Do not accept an unexplained conclusion that all consumer or commercial debts use the residual period.

Questions about when the debt became due

The starting point should be tied to the contract and facts. Ask:

• Which event completed the creditor's cause of action?
• Did instalments become due separately, or was the full balance accelerated?
• Were cancellation, maturity or performance requirements satisfied?
• Was demand a true condition for enforceability or only a step setting time to pay?
• How does Trinity Asset Management v Grindstone Investments affect the wording in this agreement?

Ask the lawyer to place the competing dates on a written timeline. That makes any assumption about default, acceleration or demand visible and testable.

Questions about knowledge and delayed completion

Section 12 includes qualifications concerning creditor knowledge. Ask what facts the creditor needed to know, when the evidence suggests those facts were known, and whether reasonable care could have produced knowledge earlier. The issue is statutory and evidential, not simply when the claimant says it discovered the account.

If minority, curatorship, superior force or another listed circumstance is relevant, ask whether section 13 delays completion and how its final-year mechanism works on these dates. Request the precise provision rather than a general equitable extension.

Questions about possible acknowledgements

Give the lawyer every payment, promise, settlement proposal and message that discusses liability. Ask:

• Could any item amount to an express or tacit acknowledgement under section 14?
• What was objectively acknowledged: the existence of an obligation, present liability, the amount or only a disputed discussion?
• When did the event occur relative to the possible completion date?
• Could a proposed reply, part payment or acknowledgement of debt alter the position now?
• Does the narrow KLD Residential v Empire Earth Investments exception affect any “without prejudice” communication?

Do not select or paraphrase only the words that appear favourable; context may control the answer.

Questions about legal process

Ask for a separate procedural opinion if a summons or judgment exists:

• Was qualifying process served, on whom and on what date?
• What happened after service, and was the claim pursued to final judgment?
• Did any interruption lapse because the claim was not successfully prosecuted, was abandoned or was set aside?
• What document must be filed now to raise prescription properly?
• Is default judgment already present, and if so, what rescission or other route is genuinely available?

Confirm that correspondence or a complaint will not be mistaken for a court filing. Ask for the exact deadline derived from the served form and current rules.

Questions about the National Credit Act

If the debt arose from credit, ask whether the agreement and parties fall within the National Credit Act before relying on section 126B. The lawyer should identify the relevant scope provisions, any juristic-person or transaction exclusion, and how the commenced 2014 amendment applies.

Ask whether sections 129 and 130 affect the enforcement history, but do not assume noncompliance ends the claim permanently. Also ask whether your real problem is a disputed or prescribed debt, over-indebtedness requiring different help, or both.

Questions about the response and outcome

Before the consultation ends, obtain answers to practical choices:

• Should the next document request information, deny an allegation, raise prescription, file a defence or propose settlement?
• Which facts can safely be stated now, and which should remain expressly disputed or unconfirmed?
• What proof of delivery, filing or service must be retained?
• Is a complaint to a collector, provider, regulator, bureau or ombud relevant without replacing court action?
• What are the realistic outcomes, costs and adverse-cost risks of each route?

If a payment arrangement is being considered, ask what admissions, interest, costs, acceleration, security, consent-to-judgment or waiver terms require revision.

Questions about fees and scope

Request a written explanation of the first mandate. Does the quoted fee cover document review, a prescription opinion, drafting a response, filing a notice, negotiations or representation? What work will require a new estimate? Who will obtain the court file or missing statements?

Ask what must happen urgently and what can wait for a fuller investigation. A clear division of work reduces the risk of paying for a long merits review while an immediate procedural step remains undone.

Related consultation resources

• Can a creditor sue after debt prescribes?: Prepare questions about pleading and live proceedings.
• Prescribed debt evidence checklist: Supply the records behind each consultation question.
• Debt collection versus debt review: Ask the right professional to address the actual problem.
• Documents for a debt-defence consultation: Organise the file before fees are incurred.

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