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This article was prepared by Go To Court Lawyers, Australia's largest legal service. For legal advice specific to your situation, call 1300 636 846.
The law governing enforcing a judgment in South Australia is the Enforcement of Judgments Act 1991. Under the Limitations of Actions Act 1936, a judgment creditor has 15 years from the date of the judgment to enforce the debt. However, if a judgment creditor wishes to enforce a debt after 6 years, they must obtain the leave or permission of the Court to proceed. After judgment, the successful party is called the judgment creditor and the person who owes the money is the judgment debtor. Before taking action to enforce a judgment, a creditor should consider whether or not the defendant is able to pay the debt, as most types of enforcement action attract fees. If the defendant has no way of repaying the debt, it won’t be repaid, or won’t be repaid in full.
Investigation hearing and examination hearing
If the judgment debt is less than $10,000.00, the first process in the enforcement of a judgment for a debt must be an investigation hearing. If the debtor is present at court when the judgment is made, the magistrate can conduct an investigation hearing into the defendant’s financial position. Otherwise, a Request to Registrar can be filed. There is a filing fee for this form. Prior to the hearing, the debtor will fill out a form setting out their financial situation. They can be questioned on this during the hearing. The court can then make an order for payment according to what they decide the debtor can pay. If the court decides the debtor has no means to pay the debt, the matter can be adjourned (usually for one year) so that the court can look at the debtor’s circumstances again.
If two payments are missed, an examination summons can be issued. There is a filing fee for this form. The judgment debtor will have to come back to court and explain why payment was not made and the court may adjust the payment order if the creditor’s circumstances have changed. If there is no proper reason for not complying with the instalment order, then the debtor may be imprisoned for contempt of court. This does not change their obligation to pay the debt.
Warrant for Sale
If the debt is over $10,000.00, a warrant for sale can be issued in relation to either the debtor’s real property (land) or personal property (such as non-essential household items). If the creditor wants a Warrant of sale and the debt is less than $10,000.00 an application to explain why a payment arrangement is not acceptable must be made. A warrant for the sale of personal property authorises a Sheriff’s Officer to enter the debtor’s address and seize property to auction to pay the debt. There is a fee for this application. Items such as cars worth less than $2,500.00, ordinary clothing and necessary household goods cannot be seized.
If the debtor is bankrupt their property cannot be seized. Any items which are under finance or jointly owned cannot be seized. For a warrant of sale of land the creditor must give a written undertaking to pay any costs involved in the auction of the land. The costs are added to the debt and may be recovered from the debtor upon sale of the land.
Charging Order
A charging order means that the debt will be registered on the real estate of the debtor or on the assets of a company. When the property is sold then it will be subject to the charge and the creditor will have priority over the owner for the proceeds of the sale, after any mortgage or legal encumbrance. An application for a charging order needs to be served on the judgment debtor. If the court grants the order, it will need to be registered at the Lands Titles Office.
Garnishee Order
A garnishee order is an order that any money owed to the debtor (wages, bank accounts etc) is paid directly to the creditor. The debtor must consent to order for it to be made.
Chronic Debtors Order
If a debtor has other outstanding debts and has been subject to enforcement action in the last year, has no realisable assets and cannot afford to repay the debt by instalments within the next year, the court can declare the debtor to be a chronic debtor. The court will make one order to cover all the debtor’s debts and fines and each creditor will be entitled to share in any payments collected by the court.
If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.
faqs: - question: 'What happens if a judgment debtor fails to attend an investigation hearing in South Australia?' answer: 'If a judgment debtor fails to attend an investigation hearing, the court can issue a warrant for their arrest or impose penalties for non-compliance. The hearing may be rescheduled, and the debtor could face additional enforcement actions. The court has powers under the Enforcement of Judgments Act 1991 to compel attendance and ensure the debtor provides information about their financial circumstances to determine appropriate payment arrangements.' - question: 'Can I enforce a judgment from another Australian state or territory in South Australia?' answer: 'Yes, judgments from other Australian states and territories can be enforced in South Australia through a registration process. You must apply to register the interstate judgment with the South Australian Magistrates Court or District Court, depending on the amount. Once registered, the judgment has the same force and effect as if it were originally made in South Australia, allowing you to use local enforcement procedures.' - question: 'How much does it cost to get legal help with enforcing a judgment in SA?' answer: 'Legal costs for enforcing a judgment vary depending on the complexity and enforcement methods required. Go To Court Lawyers offers a fixed consultation fee of $295 to assess your case and explain your options. Additional costs include court filing fees for various enforcement applications, process server fees, and ongoing legal representation. Many enforcement actions have associated court fees, so professional advice helps determine the most cost-effective approach.' - question: 'How can a lawyer help me enforce my judgment in South Australia?' answer: 'A lawyer can assess the debtor''s ability to pay, advise on the most effective enforcement method, and handle court applications including investigation hearings, garnishment orders, and property seizures. They can represent you at hearings, prepare necessary documentation, and guide you through complex procedures like chronic debtor applications. Legal representation ensures compliance with the Enforcement of Judgments Act 1991 and maximizes your chances of successful debt recovery.' - question: 'How long do I have to enforce a judgment in South Australia?' answer: 'You have 15 years from the date of judgment to enforce a debt in South Australia under the Limitations of Actions Act 1936. However, if you want to enforce the judgment after 6 years, you must first obtain the court''s permission to proceed. For debts under $10,000, you must commence with an investigation hearing as the first enforcement step, so prompt action is recommended to preserve all your enforcement options.' ---