The methods used to enforce a judgment are set out in the Court Procedures Rules 2006. The same types of enforcement are used to enforce a final order made by the ACT Civil and Administrative Tribunal (ACAT), or an interstate judgment registered for enforcement in the ACT.
The person who is owed money under a judgment is the judgment creditor and the person who owes the money is the judgment debtor. Before taking enforcement action, the creditor must serve the debtor with a copy of the judgment made against them and a notice about enforcement options. After that, no enforcement action can be taken for 7 days.
The Court will only issue an enforcement process when the appropriate document for the enforcement procedure is filed and any fee is paid.
An enforcement hearing subpoena is a way of finding out the financial status of the debtor, including their source of income and any assets or liabilities. The information may be used for a seizure and sale order or a redirection order.
The enforcement hearing subpoena must be served on the debtor at least 14 days before the hearing date. At least 8 days before the hearing date the debtor must give the Court a notice setting out their current financial situation.
At the enforcement hearing, the Court Registrar can ask the debtor questions and can order them to show documents or evidence that proves their financial circumstances. The Registrar can make an order for the debtor to pay the debt by instalments or authorise the issue of another enforcement method such as an earnings redirection order or seizure and sale order. If the debtor does not attend the hearing, the Registrar can issue a warrant for non-attendance by the debtor and/or make an order for costs.
A seizure and sale order allows a Sheriff’s Officer to seize goods belonging to the debtor and auction them to recover the monies owed. There is a fee for issuing the order.
A Sheriff’s Officer will go to the address nominated and attempt to seize the debtor’s assets. The Sheriff may seize goods that belong to the debtor personally but not goods that are in any other person’s name or any goods that are leased or otherwise encumbered. If the Sheriff cannot find goods outside the premises and is refused entry into the premises, the court may order a consent for entry.
Once the Sheriff is successful in seizing goods, the Creditor will have to pay into Court an amount to cover the expenses that may be incurred by the Sheriff in the seizure and sale. This cost is recoverable from the debtor.
An order for seizure and sale can last for one year from the date of issue by the Court.
A redirection order redirects monies such as bank accounts (either as a once-off amount, or as a continuing claim), wages, salaries, or commissions to the creditor for payment of the debt. A redirection order for a debtor’s wages or salary lasts until the debt is paid or the debtor leaves their employment. The court may also redirect monies owed by someone else to the debtor, such as where the debtor is owed money for work done.
The person who owes the money to the debtor may be ordered to pay that amount towards the debt instead. The creditor may request that payments made under the redirection order be made straight to them. This must be requested at the time of service and the person served with the redirection order is served must notify the Court and the debtor before payment is made.
After the order is served on the bank or employer or other party, a copy must be served on the debtor. A debtor may at any stage of the proceedings apply to the Court to vary or revoke a redirection order by filing with the Court an application in proceedings.
Any party to a redirection order (debtor or bank or employer or other party) may apply to revoke or vary the redirection order on the grounds of exceptional hardship. A copy of the application will be made available to the creditor. At this time a debtor may also make an offer to pay the judgment debt by instalments.
The person required to take money from the debtor under a redirection order is entitled to keep an amount as a fee for complying with the order. This amount comes out of payments due to the creditor.
At any time the debtor may apply to the Court to pay the debt by instalment. The registrar of the court can grant or refuse that request after considering the debtor’s financial position.
If the application is granted, it will stay (stop) the enforcement action. A copy of the application will be given to the creditor.
If it is refused, the debtor may appeal the decision to a Magistrate. The Magistrate will rehear the application and can confirm or, vary the Registrar’s decision.