Enforcing a Judgment (Qld)
Enforcing a judgment becomes necessary where a court or tribunal has ordered the payment of a debt (in a judgment) and the defendant has not complied with the terms of the judgment. Before a judgment may be enforced, it must be registered with the court. Judgments made in a federal or interstate court can be registered in Queensland if the enforcement debtor lives or has their place of business in Queensland.
When a judgment is registered, the person who is owed money (the enforcement creditor) can apply for an enforcement warrant for up to six years from the judgment date. A person can apply extend this time limit; however, the court may not grant an extension of time unless there is a good reason for the delay in making the application.
A judgment can be enforced in the court that delivered it, or in a lower court if the amount is within the monetary jurisdiction of the court. The rules on enforcing a judgment are the Uniform Civil Procedure Rules 1999.
Enforcing a judgment: Letter of demand
Before a person takes enforcement action, they might want to consider sending a letter of demand requesting payment by the debtor within a certain time. However, this is not a requirement.
A letter demand is a formal demand that a person pay an amount of money that is owed to avoid legal proceedings being commenced.
Enforcing a judgment: Enforcement hearing
If a creditor doesn’t know a debtor’s financial situation they can apply for an enforcement hearing to get this information. To commence this process, a statement of financial position (form 71) should be sent to the debtor with a request that it be returned within 14 days.
If a response is not received or if the debtor doesn’t provide all of the information, the creditor can apply for an order that they attend an enforcement hearing. To achieve this, an Application (form 9), an Affidavit (form 46), and an Enforcement Hearing Summons (form 70) must be filed.
The enforcement debtor must attend the enforcement hearing and answer questions about their finances and bring any documents requested in the summons. The enforcement creditor must also attend. If payment is not agreed, the court can issue an enforcement warrant. If the debtor doesn’t attend, the court has the power to issue a warrant for their arrest.
Enforcing a judgment: Enforcement warrant
Once the enforcement creditor has the information, they can apply for an enforcement warrant. This authorises the seizure and sale of the debtor’s property, the redirection of money that is owed to the creditor or a redirection of the debtor’s earnings.
To apply for an enforcement warrant, the creditor will need to file an Application (form 9), a Statement supporting application for an enforcement warrant (form 74) and a Warrant (either form 75, 76, 77 or 78). The court registrar will decide whether to issue the warrant.
If issued, the warrant is served on the enforcement debtor and on any other person who is required to do something under the warrant, such as a financial institution or employer. The rules on service differ for different types of warrants. If served by a bailiff, the creditor must pay a deposit as security for any costs the bailiff may incur under the warrant.
An enforcement warrant for the seizure and sale of property directs the sheriff or bailiff to seize and sell certain personal property belonging to the debtor at a public auction. To apply, a creditor will need to know what property the debtor owns that may be seized.
The warrant may be directed against the debtor’s real estate. A certified copy of the warrant must show the address of the property the writ is over, a Current Title Search and a QVAS search. A kerbside valuation must also be provided by a registered valuer. The property may be sold within six months of the warrant being registered. The creditor must pay the costs of the sale, most of which is recoverable as part of the judgment debt. If a sale is not proceeded with, the warrant remains enforceable for 12 months. If the debtor wants to sell or refinance the property in that time, the creditor can recover the amount of the debt and their reasonable costs of removing the warrant.
Enforcement warrant for redirection of a debt
An enforcement warrant for redirection of a debt directs someone who owes money to the enforcement debtor to pay that money to the creditor instead. The creditor must know the party’s details and the amount they owe. The amount of the debt plus any costs and interest may be recovered. This is mostly used for bank accounts, real estate commissions and sub-contractors payments.
Enforcement warrant for regular redirections from a financial institution
An enforcement warrant for regular redirections from a financial institution directs a financial institution to redirect regular payments received by the debtor to the creditor instead. To apply the creditor will need to know details of any payments regularly made and the account details.
Enforcement warrant for redirection of earnings
An enforcement warrant for redirection of earnings seizes part of the wages of the debtor each pay and sends it to the creditor. To apply for this warrant, a creditor must file a Statement of Financial Position so the court can decide the amount that the warrant will be issued for, therefore an Enforcement Hearing must be conducted before applying.
An enforcement debtor can ask the court for permission to pay a debt in instalments. If granted, any enforcement proceedings are stopped while the debtor maintains the repayments. The court will only allow this if the debt can be paid within a reasonable time and there are no valuable assets owned by the debtor. If the debtor doesn’t keep up the repayments ordered by the court, an affidavit can be filed by the creditor requesting that the Enforcement Warrant for Payment of Order Debt by Instalments be removed. The judgment can then be enforced normally.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.