Enforcing a Judgment (WA)
When a party has obtained a judgment in its favour from a court, the next step is to enforce the judgment. The party that is entitled to the benefit of the judgment and seeks to enforce it is known as the ‘judgment creditor’. The judgment is enforced against the ‘judgment debtor’. This article outlines the process of enforcing a judgment in Western Australia.
Limitation period for enforcing a judgment
A judgment creditor has 12 years from the date of a judgment to enforce it. After six years have passed, the judgment creditor will need to apply for and be granted leave of the court before proceeding with enforcing a judgment (section 12 and 13 Civil Judgments Enforcement Act 2004).
What is a judgment?
The Civil Judgments Enforcement Act 2004 (CJEA) is ‘an act to provide for the enforcement of judgments given in the civil jurisdiction of courts and for related matters’.
Under section 3 of the CJEA, ‘judgment’ is defined as:
- a monetary judgment; or
- a judgment or an order of a court that requires or has the effect of requiring a person –
- to give possession of any property to another person; or
- to do an act, to not do an act, or to cease doing an act.
To enforce a judgment, a party needs to apply to the appropriate court.
Enforcing a monetary judgment
A monetary judgment is defined as a judgment or an order of a court that requires or has the effect of requiring a person to pay money (CJEA section 3).
Interest accrues on an unpaid judgment debt from the date of the judgment until payment. Interest is calculated at the rate set by the judgment (the judgment includes an order for interest), by the court that awarded the judgment, or pursuant to the Civil Judgments Enforcement Regulations 2005.
Means Inquiry may be held before enforcing a judgment
Often a judgment creditor is not aware of a judgment debtor’s financial position. If you do not know what a judgment debtor’s financial position is, then you cannot determine the debtor’s capacity to pay the judgment debt. A ‘means inquiry’ can be held to establish this. Section 26 of the CJEA governs means inquiries.
If a judgment creditor wishes the court to hold a means inquiry, they must apply to the court to request this. Upon receiving the request, the court will list a date for the means inquiry and issue a summons to the judgment debtor.
If the means inquiry establishes that the judgment debtor has the means to pay the judgment, the judgment creditor may apply for:
- a time for payment order;
- an instalment order; or
- an earnings appropriation order.
The judgment creditor may apply for these orders at the means inquiry or after the means inquiry.
If the judgement debtor fails to attend the means inquiry, costs may be awarded to the judgment creditor and the court can issue a warrant for the judgment debtor’s arrest.
Enforcing a judgment: Orders for Payment
There are several orders for payment that may be sought in order to enforce a judgment depending on the situation.
Time for payment order
A judgment creditor may apply to the court for an order for the judgment debt to be paid immediately or by a certain date (CJEA Section 32). This is known as a time for payment order.
A judgment creditor may apply to the court for an order for the judgment debt to be paid by instalments, including the amount the instalment should be, and when each instalment is to be paid (CJEA section 33).
Earnings Appropriation Order
An earnings appropriation order is an order that requires the person who pays the judgment debtor’s earnings to at the time of their payment, portion some of those earnings to the judgment creditor. This is also known as a ‘garnishee order’.
‘Earnings’ is defined in section 4 of the CJEA.
An earnings appropriation order can only be made where:
- an instalment order was disobeyed and cancelled; and
- there are no other earnings appropriation orders applicable to the judgment debtor.
The earnings appropriation order must be served on the third party who is paying earnings to the judgment debtor.
Debt Appropriation Order
Under section 49 of the CJEA, a judgment creditor may apply to the court for an order requiring a person who owes, will owe or may owe an available debt to the judgment debtor alone or to the judgment debtor jointly to pay the whole amount of the available debt to the judgment creditor, or an amount of the available debt that will satisfy the payment of the judgment debt.
‘Available debt’ is defined in section 46 of the CJEA. A debt appropriation order in simple terms is a court order binding a third party who owes the judgment debtor a debt to pay the judgment creditor that debt instead.
Property Seizure and Sale Order
A property seizure and sale order (PSSO) is an order authorising the sheriff to seize and sell the judgment debtor’s property to wholly or partly satisfy the judgment debt (Section 59 CJEA).
Under a PSSO, the judgment debtor’s personal and real property can be seized and sold. Before the Sheriff moves to seize and sell the judgment debtor’s real property (ie the judgement debtor’s house), the Sheriff must be satisfied that the judgment debtor’s personal property will not be enough to satisfy the debt (section 64 CJEA).
A PSSO operates for 12 months.
Enforcing non-monetary judgments
A property seizure and delivery order (PSDO) can be applied for where the effect of a judgment is that the judgment debtor must give the judgment creditor possession of any personal or real property.
The judgment creditor may apply for a PSDO and if the court grants the order, the sheriff has the power to seize the property and deliver possession of the property to the judgment creditor.
A PSDO operates for 12 months.
A PSDO is generally sought in residential tenancies matters where the tenant refuses to vacate the leased property.
Contempt of Court
If a judgment debtor disobeys a non-monetary judgment, they are guilty of contempt of court (section 98 CJEA). This extends to partnerships and corporations.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.