Guide to Enforcement of Judgments
The methods to enforce a judgment of the Magistrates Court are prescribed by the Court Procedures Rules 2006. The same methods are used to enforce a final order made by the ACT Civil and Administrative Tribunal (ACAT).
The Court will only commence enforcement process on your instruction. This requires you to complete and file the appropriate document for the enforcement procedure you wish to initiate. Court Officers cannot tell you which procedure would be more effective in relation to your case. The decision as to the method, which is the most appropriate, is your responsibility. Court Officers can provide information to you in respect of the procedures prescribed under the Rules.
Upon the making or entering of a judgment, the parties to proceedings are referred to as follows:
Enforcement Creditor - means a person in whose favour a judgment is given;
Enforcement Debtor - means a person against whom a judgment is given, and
Judgment Debt - includes an amount of money ordered by the Court to be paid, whether as costs or otherwise.
Methods of enforcement
The Court Procedures Rules 2006 sets out the methods available to an Enforcement Creditor to recover a judgment debt. These are:
- enforcement hearing subpoena;
- seizure and sale order;
- earnings redirection order;
- debt redirection order, and
- regular redirection order.
It is not a requirement to use these methods in any particular order.
Requirement prior to enforcement
Before an enforcement method may be used to recover an outstanding judgment debt, the creditor must serve the debtor with a copy of the judgment made against them and a form 2.49 (notice about Court order and enforcement options). An enforcement method may not be started until 7 days after the date of service. The civil registry can provide you with assistance to carry out this step.
Enforcement hearing subpoena
An enforcement hearing subpoena is available to an Enforcement Creditor as a means of obtaining information on the financial status of the Enforcement Debtor. This information includes the debtor’s source of income, assets and liabilities, investments and any other factors relevant to the debtor’s financial position. Any information obtained may then be used to assist with a seizure and sale order or redirection order.
Any document referred to in this guide is available from the Court Registry at no cost.
The Court will allocate a date for the enforcement hearing to take place and generate an enforcement hearing subpoena for you to serve on the debtor. Service of the enforcement hearing subpoena must be effected at least 14 days prior to the allocated hearing date.
An affidavit for service of the enforcement hearing subpoena should be filed with the court as soon as practicable after service on the debtor.
At least 8 days prior to the allocated hearing date the debtor is required to supply the Court with a notice setting out the debtor’s current financial situation.
On the date set for the enforcement hearing, the Court Registrar will preside over the proceedings and may:
- orally examine the debtor to ascertain their financial circumstances;
- order the debtor to supply the court with documents or evidence relating to their financial circumstances;
- make an order for the debtor to pay the judgment debt by instalments;
- issue another enforcement method such as an earnings redirection order or seizure and sale order;
- issue a warrant for non-attendance by the debtor; or
- award costs.
Seizure and sale order
An order for seizure and sale authorises a Sheriff’s Officer to seize goods belonging to the debtor for the purpose of auctioning them to recover money owed to the creditor. An order for seizure and sale attracts a fee (as per fee schedule) for judgments made or registered in the civil jurisdiction.
A creditor may apply for an order for seizure and sale by filing with the Court form 2.59, an affidavit in support and paying the applicable fee. The Court will deliver the seizure and sale order to the Office of the ACT Sheriff located at the Supreme Court (next to the Magistrates Court Building in Knowles Place).
A Sheriff’s Officer will attend the address nominated by the creditor to affect a seizure of, or to ascertain the status of, the debtor’s assets. The Sheriff may seize goods belonging to the judgment debtor personally but not goods which are in another person’s name or goods which are leased or encumbered.
If the Sheriff cannot levy on goods outside the nominated premises, and is refused entry into those premises, the Sheriff may make application to the Court to obtain consent for entry.
If the Sheriff is successful in seizing goods, the Judgment Creditor will be required to pay into Court an amount to cover expenses that may be incurred by the Sheriff. This cost is recoverable from the debtor.
A debtor may apply to the Court to have the judgment debt paid by instalments. The registrar of the court may accept or decline an application upon considering the financial position of the debtor. If the application is accepted, a copy of the debtor’s application will be made available to the creditor.
If an application to pay by instalments is declined by the Registrar, the debtor may appeal the decision to a Magistrate who may rehear the application and affirm, reverse or amend the Registrar’s decision.
An order for seizure and sale can last for one year from the date of issue by the Court.
A redirection order attaches earnings such as wages, salaries, commissions or bank accounts with the purpose of redirecting those monies for payment of a judgment debt. For example, a redirection order served on the debtor’s bank empowers the bank to deduct money from the debtor’s account. Similarly an earnings redirection order served on the debtor’s employer empowers the employer to deduct money from the wages due to the debtor. The court may also redirect monies owed by a third party to the debtor. For example, if the debtor is owed money for work done or services provided, the third party may be ordered to direct the monies owed away from the debtor and pay that amount towards an outstanding judgment debt.
If a creditor applies to redirect a debtor’s salary or wages, an application would be made in accordance with form 2.64 and affidavit in support.
If a creditor applies to redirect monies owed from a third party to the debtor, an application would be made in accordance with form 2.62 and affidavit in support. An application under this part is also used for monies redirected from the debtor’s bank account on one instance only.
If a creditor applies to redirect regular monies from the debtor’s bank account, an application is made in accordance with form 2.63 and affidavit in support.
The creditor must serve the redirection order on the bank/employer/third party, whichever is relevant in the circumstances. Upon service on the bank/employer/third party, the creditor must within 5 days serve a copy of the redirection order on the debtor.
A party on whom a redirection order is served (bank/employer/third party) or the debtor may apply to revoke or vary the redirection order on the grounds of exceptional hardship. At this time a debtor may make an offer to pay the judgment debt by instalments. An order of the Court that the debtor pay the judgment by instalments stays the operation of the redirection order.
The creditor may request that payments made from an employer be made directly to them. This must be requested at the time of service and the party on whom a redirection order is served (bank/employer/third party) must notify the Court and the debtor prior to any payments being made.
Redirection orders – general information
A party on whom the redirection order is served (bank/employer/third party) is entitled to retain a fee for complying with the order. This is retained out of payments due to the creditor.
A redirection order filed in accordance with form 2.64 will operate, for a debtor’s wages or salary, until the judgment debt is paid or the debtor leaves his/her employment.
A debtor may at any stage of the proceedings apply to vary or revoke a redirection order by filing with the Court an application in proceedings. A copy of the debtor’s application will be made available to the creditor.
If you have any further enquiries on the enforcement methods offered by the court, please contact the ACT Magistrates Court, Civil Registry.