If the court has made an order that someone owes you money (a judgment) and they don’t pay, you may want to start enforcement proceedings. You must make an application for an enforcement order within 12 years from when judgment was given. If more than 6 years have passed since the judgment, you will need to obtain the leave of the court to apply for certain enforcement processes. To take enforcement action, you will need to lodge the correct form (available from the Magistrates Court of WA) and pay the application fee at the court where the judgment was made. If the judgment was given in another state or territory and the judgment debtor lives or has a business in Western Australia it can be registered for enforcement here. The laws that deal with enforcing a judgment in Western Australia is contained in the Civil Judgments Enforcement Act 2004.
The judgment debtor is required to complete a Statement of Financial Affairs and bring it to court. At court, they answer questions under oath from you about their income, expenses, assets and debts and the financial situation of their partner and/or dependants. Information you find out helps you to know which enforcement option is best to take to get the money you are owed. You will need to decide if you want the judgment debtor to bring any financial or personal records to court and whether to summons other people to court to give or bring evidence about the judgment debtor’s financial situation.
If the court location is inconvenient, either party can ask for the means inquiry to be moved to another court. The court will listen to both of you and then decide which venue is fairest for both of you. If you, or your lawyer, don’t attend the means inquiry hearing the court may order that you pay the judgment debtor’s costs.
Orders that can be made at a means inquiry
- If the judgment debtor doesn’t attend, they could be found in contempt of court and fined or imprisoned.
- If the court decides that a judgment debtor is unable to attend the means inquiry through illness or for other good reason, the judgment debtor may be ordered to complete and lodge the Statement of Financial Affairs in the form of an affidavit. The court may make an order for costs in your favour.
- The court may decide the judgment debtor is unable to pay the debt at all and make no order.
- If the court believes the judgment debtor can pay the debt it could order either that the debt is paid by a certain date or by regular instalments.
- If a previous instalment order has been disobeyed and has been cancelled, the court may order that the judgment debtor’s employer pay part of their wages to you (an earnings appropriation order).
Property (seizure and sale) order
A property (seizure and sale) order allows the Sheriff or Bailiff, to seize and sell the judgment debtor’s personal property or real estate to pay the money owed to you. This includes the judgment debt, interest, and enforcement costs. It is up to you to find out whether the judgment debtor has any goods or property that can be seized and sold. You will need to advise where the personal property is located and the details of any real estate, such as certificate of title information. Personal property has to be sold before the bailiff can seize and sell any real estate.
There is certain property that cannot be seized by the bailiff. After the sale, the bailiff will first pay any costs, for things such as storage and removal of goods and auction fees. The balance of the money is then given to you to cover the outstanding debt. If there is still an amount owing, you can take further action to get the judgment debtor to pay it.
Stopping the seizure and/or sale of property
The judgment debtor can pay the debt, interest and enforcement costs or negotiate with you to arrange payment of the debt. In some circumstances they could apply to the court to put the property (seizure and sale) order on hold. This is called a suspension order. If the judgment defendant disputes the debt is owed, they may be able to apply to set aside the default judgment. Until the court makes an order to suspend enforcement, or sets aside the judgment, the Sheriff or bailiff must continue the enforcement process.