Enforcing a Judgment (Vic)
Enforcing a judgment becomes necessary when a court has delivered a monetary judgment against a party but the party has failed to comply with its terms. There are several ways of enforcing a judgment in Victoria. These include instalment orders, garnishment orders and warrants to seize property. These orders are governed by the Magistrates’ Court Act 1989, the County Court Act 1958 and the Supreme Court (General Civil Procedure) Rules 2005. The procedural rules for enforcing a judgment in the Magistrates Court, Supreme Court and Country Court are largely the same.
The primary legislation relating to instalment orders in Victoria is the Judgment Debt Recovery Act 1984. Either party to a judgment can apply for an instalment order under the Act and these applications are generally dealt with by the Registrar of the relevant court.
The court can require the debtor to attend court and answer questions regarding their situation. An instalment order allows a judgment debtor to pay off the judgment in instalments over a set period of time.
Either party to a judgment can request an instalment order be cancelled or varied, but only on two grounds. Firstly, this may be requested on the basis that the property or the income of the debtor has increased significantly. Secondly, it may be requested on the basis that information provided in support of the application was inaccurate.
Under section 11 of the Act, parties are free to make an arrangement for payment of a judgment debt themselves. However, such an agreement does not preclude the court from making an instalment order.
Enforcing a Judgment: Warrant to seize property/warrant for delivery
When enforcing a judgment in Victoria, courts may also issue warrants to seize property and then sell it. The warrant will generally give the debtor an opportunity to pay the debt, and if it remains unpaid, authorise the Sheriff’s Office to seize and sell items belonging to the debtor to pay the debt, as well as the creditor’s court costs and the sheriff’s costs.
The powers of the sheriff are set out in the Sheriff Act 2009. The sheriff must ask for the debtor’s consent to enter premises, and must have a reasonable suspicion that the goods are located in the premises. If the debtor refuses to allow the sheriff entry, he or she may use reasonable force to carry out the warrant. It is an offence to dispose of, deface or destroy items contained in a warrant to seize property.
Some goods are protected and the sheriff cannot seize these items. Essentially, items that would not be allowed to be taken from a bankrupt person cannot be taken from a judgment debtor. These include basic personal items, such as the person’s principal means of transport, work-related items and basic household goods and furniture. These also include items that are not the sole property of the debtor and may belong either solely or jointly to another person. If these items are seized, the other owner/s can apply to the court for their return, along with costs.
In any event, a person should always obtain written documentation of anything the sheriff has seized at the time of seizure.
In the County and Supreme Courts, warrants can also be issued for the sale of land and/or real estate. This does not necessarily mean the sale of the whole property, merely the debtor’s share in it. This cannot occur in the Magistrates Court.
Enforcing a Judgment: Attachment of earnings/debts orders
Attachment of earnings and attachment of debts orders compel third parties to pay money to the judgment creditor on behalf of the judgment debtor. These orders generally relate to any debt which is payable to the debtor on the day that the order is made, regardless of whether the money has already been deposited. The third party is referred to as a “garnishee”.
Attachment of earnings orders compel the debtor’s employer to deduct amounts from their salary or wages in instalments. Debtors will need to provide information about their earnings. It is an offence to withhold information or provide false information in relation to earnings or not to comply with the order. This offence attracts a fine of 60 penalty units or 6 months imprisonment.
An employer cannot dismiss employees because of such an order.
Enforcing a Judgment: Process for enforcing a judgment
The forms required to initiate enforcement proceedings can be found online:
Warrants generally remain in force for one year after they are issued. While there is no time limit for enforcing a judgment, the Rules do make it more difficult to obtain a warrant after six years have passed.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.