Enforcing a Judgment in Queensland
In Queensland, where a court or tribunal has made a judgment against a person and the person has not complied with the terms of the judgment, the judgment may be enforced. This article deals with the procedures involved in enforcing a judgment in Queensland.
Registering a judgment
Before a judgment can be enforced, it must be registered at the court. Judgments made in a federal or interstate court can be registered in Queensland if the person owing the money (enforcement debtor) lives or has their place of business in Queensland.
When a judgment or money order is registered, the person owed money (enforcement creditor) can apply to issue an enforcement warrant up to six years from the judgment date. An application can be made to extend this time; however, the court may not grant it.
A judgment can be enforced in the court that made it, or if the amount is within the monetary jurisdiction of a lower court, it can be registered there. The rules that deal with enforcing a judgment are the Uniform Civil Procedure Rules 1999.
Before taking enforcement action, you may also consider sending a letter of demand seeking payment within a certain time.
If you don’t know the debtor’s financial situation you can apply for an enforcement hearing to get this information. Firstly, you send a statement of financial position (form 71) and request that it is returned within 14 days. If you don’t get a response or if the debtor doesn’t provide all of the information, you can apply for an order that they attend an enforcement hearing. You need to file an Application (form 9), an Affidavit (form 46), and an enforcement hearing summons (form 70). The enforcement debtor must attend and answer questions about their finances and bring any documents requested in the summons. You must also attend. If payment is not agreed, the court can order an enforcement warrant. If the debtor doesn’t attend, the court may issue a warrant for their arrest.
Once you have the information you can apply for an enforcement warrant. This can authorise the seizure and sale of property belonging to the debtor, the redirection of money that is owed to them or a redirection of their earnings. To apply you will need to file an Application (form 9), a Statement supporting application for enforcement warrant (form 74) and Warrant (either form 75, 76, 77 or 78). The registrar of the court will decide whether to issue the warrant. If issued, it is served on the enforcement debtor and any person who needs to do something under the warrant, such as an employer or financial institution. The rules on serving different types of warrants differ. If served by a bailiff, you need to 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/bailiff to seize and sell certain types of personal property belonging to the enforcement debtor at a public auction. To apply, you will need to know what property the enforcement debtor owns that may be seized.
The warrant may be directed against the debtor’s real estate. You need a certified copy of the warrant showing the address of the property the writ is over, a QVAS search and a Current Title Search. You also need a kerbside valuation by a registered valuer. The property may be sold within six months of the Warrant being registered. You have to pay the costs of the sale, most of which is recoverable as part of the judgment debt. If you don’t proceed with a sale, the warrant remains enforceable for 12 months. If the Debtor wants to sell or refinance the property in that time, you can recover the amount of the debt and your reasonable costs of removing the warrant.
There are several types of enforcement warrants that can be sought.
Enforcement warrant for redirection of a debt.
This directs someone who owes money to the enforcement debtor to pay that money to you instead. You need to know their details and the amount they owe. You may recover the amount of debt plus any costs and interest. This is mostly used for real estate commissions, sub-contractors payments and bank accounts.
Enforcement warrant for regular redirections from a financial institution.
This directs a financial institution, such as a bank, to redirect regular payments received by the debtor to you. To apply you will need to know details of any payments regularly made and the account details.
Enforcement warrant for redirection of Earnings.
This seizes part of the wages of the Debtor each pay and sends it to you. To apply, you must file a Statement of Financial Position so the court can decide the amount that it will be issued for, therefore you must conduct an Enforcement Hearing before applying.
An Enforcement Debtor can ask the court for time to pay the debt. If granted, any enforcement is stopped while the debtor maintains the repayments. The court will only allow an instalment order if the debt can be paid in a reasonable time and the debtor doesn’t own any valuable assets. If the debtor doesn’t keep up the repayments, an Affidavit can be filed requesting that the Enforcement Warrant for Payment of Order Debt by Instalments be removed. The judgment can then be enforced normally.
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