Introduction
When the order is made then they owe you a “judgement debt” you become the Judgement creditor and they the Judgement debtor.
Once the order is made that a person owes you a judgement debt then they should pay you straight away. If you are not paid straight away then you can use the court to “enforce” your judgment. ( Please put link to Chapter 2 of the Local Court (Civil Jurisdiction ) Rules).
Common ways of enforcing your judgement debt are:
- The judgment debt be paid in instalments – known as an instalment order, or
- Authorises a Commercial Agent ( commonly referred to as a bailiff or debt collector) to take the debtor’s goods – Warrant of Seizure and Sale, or
- Requires the judgement debtors employer to pay you directly from the debtor’s earnings –an attachment of earnings order, or
- Requires someone who owed them money to pay the money to you and not the judgement debtor – known as an Attachment of debt order or a garnishee order.
Some of the costs of enforcing judgment can be added to the amount owing. For example, you can only claim certain amounts for the bailiff fee. A bailiff may charge more than you are able to claim.
A debtor cannot be fined, imprisoned or arrested for non-payment of debt.
Being paid in instalments
The court may make an order for the debtor to pay you the money in small amounts over a period of time. This is called an instalment order.
If you agree on payment terms
If the court doesn't make an instalment order, and you and the debtor agree on payment terms, you can apply to the court to make an instalment agreement.
You and the debtor must:
- Complete the instalment agreement.
- Sign the instalment agreement.
- File it at the Local Court in seven days of you, the creditor, signing the agreement.
If you don't agree on payment terms
If you and the debtor cannot agree on payment terms, the debtor must apply for an instalment order.
They must:
1. Complete either:
And also:
- a judgment debtor’s declaration of financial situation in court
2. File the documents at the Local Court.
3. Give copies of these documents to you.
The court's decision
When an application is filed the court will look at the application and consider any objections the judgment debtor may have.
An application for an installment order can be refused if the debtor has:
- proposed instalment amounts that a too small considering their income and their ability to perhaps pay a larger installment
- or if they haven’t given enough information on their finances.
If you disagree with the court's decision
If you or the debtor disagree with the decision, you can both apply for the matter to be heard by a judge or judicial registrar.
You must:
1. Complete both:
- a notice of objection
- an affidavit stating the reasons for the objection.
2. File the documents at the Local Court.
It will then be up to the judge or judicial registrar to decide what a fair amount will be considering all of the relevant circumstances.
If the debtor’s financial circumstances change
If the debtor can no longer meet the terms of an installment order, they can file:
- an application for variation or cancellation of order for payment of judgment debt by instalments
- a fresh judgment debtor’s declaration of financial circumstances.
If you are owed a judgment debt and believe there has been a large increase in a debtor’s property or means, you can also apply for a variation of the instalment order.
Examining the debtor’s finances
You can apply to the court for the debtor's finances to be looked at by a lawyer or the court registrar. This is called an examination summons.
The debtor must attend a hearing of that summons and at that hearing the debtor must provide a list of weekly costs, such as the following:
- rent
- food
- childcare
- medical
- other expenses.
- That way the Court can make a decision as to a payment plan with all of the relevant information.
A Judgement Debtor should also propose a payment plan to be considered.
If they have already paid some of the debt they must provide receipts.
If the debtor doesn't attend the hearing
If the debtor avoids examination, an application can be made for a private bailiff to arrest them and bring them to court.
This is called a warrant of arrest on disobedience to summons.
Seizing the debtor’s goods
Once you have been granted a warrant of seizure and sale by the court, you can request a bailiff to take and sell the debtor’s goods to pay the debt, plus any costs and interest.
What the bailiff does
The bailiff will visit the debtor's home to explain the process.
They can only take personal property of the debtor's that they fully own.
This includes:
- money
- furniture
- televisions
- electrical appliances
- cars.
They cannot take items that are any of the following:
- belong to someone else
- rented or are on hire purchase
- are jointly owned with a spouse or relative.
The debtor can keep essential goods for living and work, such as clothing and tools of the trade.
Seizing goods without taking them away
A bailiff can seize goods without actually taking them away. Often they will leave them at the debtor’s house while a sale is arranged.
The bailiff must leave a notice of seizure on the goods or on the land they were seized on. Seized property must be advertised for sale in a local newspaper and sold at public auction or by tender.
The debtor can take the goods back by paying the bailiff the amount being claimed at any time before they are sold.
However, the debtor must also pay the cost of:
- seizing
- advertising
- arranging the sale.
Sale of land
The Court could also make an order that the judgement creditor be allowed to seize property. A warrant may allow a bailiff to sell the debtor’s land. The bailiff must follow special procedures before they advertise land for sale.
If the debtor has little or no property
The warrant to seize property remains in force for 12 months. You can apply to the bailiff during this time to make another attempt to seize goods.
What a debtor can do
To prevent the bailiff from seizing property, the debtor must immediately seek an instalment order.
If they don’t owe the money or the amount is wrong, they can ask the bailiff to delay while they contact the creditor to check the facts.
If the bailiff will not delay, they can apply to the court for a stay of enforcement.
Being paid from the debtor’s wages
If the debtor has a job, you can apply for payments to be taken from their wages.
This is called an attachment of earnings order.
The court will decide the amount, making sure the debtor has enough money for living expenses. This is known as the protected earnings rate.
When the debtor is owed money
If the debtor cannot pay and they are owed money by someone else, the creditor can apply for a warrant to attach debt (a garnishee order)
This means the person who owes money to the debtor, known as a garnishee, pays the money directly to the creditor.