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Enforcing a Judgment in Victoria
It is one thing to win your case before a court or tribunal and have an order made in your favour. It can be another thing having that order carried out. Fortunately, there are several ways of enforcing a judgment in Victoria against judgment debtors, including instalment orders, garnishment orders and warrants to seize property. These can be found under section 111 of the Magistrates’ Court Act 1989, (under section 53 of the County Court Act 1958, the court has the same jurisdiction as the Supreme Court) and under the Supreme Court (General Civil Procedure) Rules 2005. In terms of the various Civil Procedure Rules for the Magistrates’ Court, the County Court and the Supreme Court regarding enforcing a judgment in Victoria, they largely mirror each other.
The primary piece of legislation in relation to instalment orders in Victoria is the Judgment Debt Recovery Act 1984. Either the judgment creditor or debtor can apply for the instalment order under the Act pursuant to Order 61 of the Civil Procedure Rules, which is normally dealt with by the Registrar of the relevant court. The court can require the debtor be orally examined; that is, to attend court and answer questions regarding their situation. These orders, predictably enough, allow the judgment debtor to pay off the judgment in instalments over a set period of time.
Either party can request an instalment order be cancelled or varied, but only on two grounds; that the property or the income of the debtor has increased significantly, or that information provided in support of the application was inaccurate. Section 11 of the Act also states that the parties are free to make an arrangement themselves, regardless of whether an instalment order is in force or not.
Warrant to seize property/warrants for delivery
The courts may also issue warrants to seize property when enforcing a judgment in Victoria (and to then sell those items) or in relation to goods which are to be delivered to the judgment creditor. This procedure usually is then carried out by the Sheriff’s Office (but police officers are also authorised under the Magistrates’ Court Act). The warrant (and the Sheriff) will generally give the debtor an opportunity to pay the debt, and if the debt remains unpaid, authorises the Sheriff’s Office to seize and sell items belonging to the debtor to pay the amount owing, as well as the creditor’s court costs and the Sheriff’s costs.
The powers of the Sheriff are regulated under the Sheriff Act 2009. The sheriff must ask for the debtor’s consent to enter the premises, and must have a reasonable suspicion that the goods listed in the warrant are located in the premises. If the debtor still refuses to allow the sheriff entry, the sheriff may use reasonable force to carry out the warrant under section 21 of the Act. It is also an offence to dispose of, to deface or to destroy items contained in the warrant.
Some goods are protected however, and the Sheriff cannot seize these items. Basically, the same items that would not be allowed to be taken from a bankrupt person cannot be taken from a judgment debtor, and include basic personal items, including the principal means of transport, work-related items and basic household goods and furniture. Principally, these include items which are not solely the property of the debtor and may belong either solely or jointly with another person. If these items are seized, the non-responsible owner can apply to the court for the return of these items, along with costs.
In any event, you should ask for, and receive, written documentation in relation to anything the Sheriff has seized at the time of seizure.
In the County and Supreme Courts (but not the Magistrates’ Court) warrants can also be issued for the sale of land and/or real estate. This does not necessarily mean the whole property is sold, merely the debtor’s stake (or equity) in it.
Attachment of earnings/debts orders
Attachment of earnings and attachment of debts orders compel third parties to pay the judgment creditor on behalf of the debtor. Attachment of debts orders generally refer to any debt which is payable to the debtor on the day that the order is made, regardless of whether the money has been deposited into the debtor’s bank account. The third party is referred to as a “garnishee”.
Attachment of earnings orders compel the debtor’s employer to deduct amounts from salaries and wages in instalments. Debtors will need to provide information in relation to their earnings. You should note that it is an offence to withhold or provide false information in relation to earnings and it is an offence not to comply with the order (penalty 60 penalty units or 6 months imprisonment). Employers cannot dismiss employees because of such an order.
Process for enforcing judgments
The relevant forms can be found online; the Magistrates’ Court forms, the County Court forms and the Supreme Court forms. Warrants generally last for one year after they are issued. It is important to remember that while there is no time limit for enforcing judgments, the Rules do make it more difficult to obtain a warrant after six years (in the County and Supreme Courts under rule 68.02 of the Supreme Court Rules, and by extension in the Magistrates’ Court under rule 68.10 of the Magistrates’ Court Rules).