Diligence on the dependence of an action
A creditor can present a petition to the court asking to award diligence on the dependence of a future action.
The court can decide to hold a hearing (which the client can attend) or proceed without a hearing. In deciding whether to grant a warrant without a hearing, the court considers whether:1s15E(2) D(S)A 1987 •the creditor has a sufficient evidence for the case to proceed;
•there is a real and substantial risk enforcement of any decree in the action in favour of the creditor would be defeated or prejudiced by reason of:
◦the client being insolvent or verging on insolvency;
◦the likelihood of the client removing, disposing of, burdening, concealing or otherwise dealing with all or some of the client’s assets;
•it is reasonable in all the circumstances.
The onus is on the creditor to satisfy the court that the order granting a warrant should be made.
Where the court makes an order granting a warrant for diligence on the dependence without a hearing, the court:2s15E(4) D(S)A 1987 •fixes a date for a hearing; and
•orders the creditor to notify that date to the client and any other person with an interest.
Where the court refuses to make an order granting a warrant without a hearing and the creditor insists on the application, the court:3s15E(6) D(S)A 1987 •fixes a date for such a hearing on the application; and
•orders the creditor to notify that date to the client and any other person appearing to the court to have an interest.
At the hearing, the client can put their case forward and state why diligence on the dependence should not be awarded. The onus is on the creditor to satisfy the court that it should be awarded.4s15F(4) D(S)A 1987