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Where am I now? Lawlink > Local Courts > Going to Court > Enforcement of a Debt
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Enforcement of a Debt
If you have obtained a judgment from the Local Court and the amount of the debt has not been paid you may have rights to enforce the payment of the debt through the Local Court Registry.
There are three types of court enforcement action that may assist you in forcing the debtor to pay the judgment debt:
Writs of Execution - this is where the Sheriff's Officer can be directed to attend the judgment debtor's address and seize property owned by the debtor and sell it at a public auction if the debt is unpaid.
Garnishee Orders - a garnishee order may be given to an employer, bank manager or some other person who is holding money on behalf of the debtor and directing them to pay the money held into court for payment of the debt.
Examination Notices - this is a document sent to the debtor which requires the debtor to answer questions on their financial circumstances and provide copies of documents.
WRIT OF EXECUTION
A Writ of Execution empowers a Sheriff’s Officer to attend a Judgment Debtors place of residence or business (if the Judgment Debtor is trading as a company or business) and attempt to seize goods for sale at public auction.
You may be required to pay additional costs attached to the execution of the writ. These costs may include such things as advertising costs and towing fees.
There are certain items that cannot be seized by the Sheriff. These include kitchen or bedroom furniture, clothing or tools of trade.
Forms Required
A prescribed form, either Form 49 – Notice of motion writ for the delivery of goods or
Form 49 -Notice of motion writ for levy of property is required to be completed and may be signed by the Judgment Creditor or a Solicitor. Forms can be found here.
Fees Payable
A prescribed fee if payable upon lodgment of the notice of motion for a writ. Additional fees may be payable to the Sheriff's Officer for advertisement and towing costs and other fees. Any fees paid by the Judgment Creditor are added to the judgment debt.
Where to Apply
A Judgment Creditor must file the notice of motion for Writ with the prescribed fee at the court where the action commenced.
A Writ of Execution is valid for TWELVE MONTHS from the date of issue. At the end of the twelve month period the Judgment Creditor must apply for a new Writ.
A Writ of Execution may be executed anywhere in New South Wales. Should a Judgment Debtor change address (within New South Wales) the Writ may be redirected to another Sheriffs Office upon written request and payment of an additional fee.
The Sheriff’s Office will forward a written report to the Judgment Creditor after levy has been attempted advising as to the success or otherwise of the Writ.
A Writ of Execution may also be levied against the Judgment Debtor’s land in certain circumstances. Advice concerning this process should be sought from your solicitor, Chamber Registrar or Court Registry Staff.
EXAMINATION NOTICE
An Examination Notice is a document sent to the debtor which requires the debtor to answer questions on their financial circumstances and provide copies of documents.
Details of their financial circumstances may assist in identifying options for the payment of the debt.
The issue of the Examination Notice does not require the approval of the Court and there is no fee for the issue of the document. The Examination Notice does not require personal service and may be served by post on the judgment debtor.
A Registrar will conduct the examination only if the Judgment Creditor or agent does not have an address within 30 kilometres of the court at which the examination is to be conducted.
Forms Required
Prescribed form 41 – Examination Notice is required to be completed. Forms can be found here.
Fees Payable
There are no fees payable for the issue of the Examination Notice documents and it does not have to be filed with the Court. However the judgment creditor should keep a copy of the notice sent to the debtor, and a record of how and when it was served.
What if the examination notice is not complied with?
The creditor can apply to the Court for an Examination summons to be issued.
The summons is a document issued by the Court directing the Judgment Debtor attends the nearest court to their residence for the purpose of being questioned by the Registrar of the Court as to their financial means, assets and liabilities. The Judgment debtor is also questioned as to proposed arrangements for paying the judgment debt.
The debtor must lodge Form 42: Notice of motion – examination order, with the Court. There is a fee for filing this motion.
Should the Judgment Debtor not appear at the examination hearing and there is an affidavit of service on file, the court will notify the parties issuing a notice that a Warrant may issue. The Judgment debtor has 14 days to arrange examination with the court. Should the Judgment debtor fail to make arrangements with the court within 14 days, the Judgment Creditor may apply for a Warrant to issue. The Warrant authorises the Sheriff's Officer to arrest the judgment debtor and bring him or her before the Registrar so that the examination may be conducted. There is a prescribed form to be completed and fee payable to undertake this next step.
A Warrant of Apprehension of a Judgment Debtor expires after three months of issue.
GARNISHEE ORDERS
A garnishee order requires moneys being held by another party ( e.g.: Employer in the form of wages or salary) to be paid instead to the court or Judgment Creditor. Garnishee orders may apply to a judgment debtor’s wages/salary, bank account and money held under contract.
Should a person or institution who is directed by way of garnishee order to deduct money held on behalf of the Judgment Debtor fail to so, that person or institution may become liable for part or whole of the Judgment debt.
Garnishee Orders do not apply to the wages of Commonwealth Public Servants. However there a procedures available to Judgment Creditors to have money deducted from persons wages and salary who are employed as public servants by the Commonwealth. Further information may be obtained from the Court Registry.
Forms Required
Prescribed forms are required to be completed: Form 53 – Notice of motion for garnishee order. Forms can be found here.
Fees Payable
There are no fees payable to issue the Garnishee documents. However a service fee is payable should the Judgment Creditor require the Sheriff to serve the garnishee document.
Where to Apply
Garnishee Orders must be issued at the court where the action commenced.
There are many varied situations that may be encountered surrounding the garnishee order process. Please seek advice and assistance from a solicitor, Chamber Registrar or Court Registry staff prior to issuing garnishee orders.
INTERSTATE JUDGMENT DEBTORS
Should a Judgment Debtor reside in another state, a Judgment Creditor may make written application to the court for a Certificate of Judgment for the purpose of registering the judgment interstate. Once the certificate of Judgment is registered in that state it then becomes a Judgment of that state and is enforced according the laws of that state.
BANKRUPTCY PROCEEDINGS
A certified copy of Judgment may also be obtained from a court for the purpose of instigating Bankruptcy proceedings against the Judgment Debtor. Further information concerning bankruptcy proceedings may be obtained by contacting the Insolvency and Trustee Service of Australia, Level 8, 135 King Street, Sydney N.S.W. 2000, a solicitor or Chamber Registrar.
Forms Required
Prescribed forms are required to be completed. Form 34 – Request for copy of judgment or order. Forms can be found here.
Fees Payable
There is a fee payable upon application for a Certificate of Judgment which may vary from time to time.
Where to Apply
A certificate of Judgment must be issued from the court that commenced the action.
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