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Enforcing a Judgment (WA)
Sometimes when a court enters a judgment against a party, the party does not pay the debt immediately. This may occur for a range of reasons. When a party fails to pay a judgment debt, the other party is entitled to start enforcement proceedings. This article explains the procedures for enforcing a judgment in Western Australia.
Legislation
The laws that deal with enforcing a judgment in Western Australia are contained in the Civil Judgments Enforcement Act 2004 and the Civil Judgments Enforcement Regulations 2004.
Limitation period
A person must make an application for an enforcement order within 12 years of the date when judgment was given. If more than six years have passed since the judgment, the party may need to obtain the leave of the court before applying.
Applying for enforcement orders
To take enforcement action, a party must lodge the correct form and pay the application fee at the court where the judgment was entered.
If the judgment was given in another state or territory and the judgment debtor lives or has a business in Western Australia, the judgment can be registered for enforcement in WA.
Means inquiry
When enforcement action is taken against a judgment debtor, they will be required to attend a means enquiry. This is an enquiry to ascertain whether they have the means to pay the judgment dent.
The judgment debtor will be required to complete a Statement of Financial Affairs and bring it to court. At court, they will be required to answer questions under oath from the judgment creditor about their income, expenses, assets and debts and the financial situation of their partner and/or dependants. This information helps the judgment creditor to know which enforcement option is more suitable to obtain the money they are owed.
The judgment creditor will need to decide if they want the judgment debtor to bring any financial or personal records to court. They will also need to decide whether to summons other parties to court to provide evidence about the judgment debtor’s financial situation.
If the judgment creditor, or their lawyer, does not attend the means inquiry hearing, the court may order that the judgment creditor pay the judgment debtor’s costs. They could also be found in contempt of court and fined or imprisoned.
If the court decides that a judgment debtor cannot attend a means inquiry for a good reason, the judgment debtor may be ordered to complete and lodge the Statement of Financial Affairs in the form of an affidavit.
Orders that can be made at a means inquiry
At a means enquiry, the court may make a range of orders. If the court decides that the judgment debtor is unable to pay the debt at all, it may make no order. If the court believes the judgment debtor can pay the debt, it may order either that the debt be 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 the judgment creditor (an earnings appropriation order).
The court may make an order for costs in the judgment creditor’s favour.
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 the creditor. This includes the judgment debt, interest, and enforcement costs.
It is up to the creditor to find out whether the judgment debtor has any goods or property that can be seized and sold. They 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
A judgment debtor can pay the debt, interest and enforcement costs or negotiate with the creditor to arrange payment of the debt to avoid having their property seized and sold.
In some circumstances a creditor may be able to apply to the court to put the property (seizure and sale) order on hold. This is called a suspension order.
If a judgment debtor disputes that the debt is owed, they may be able to apply to set aside the default judgment.
However, until the court makes an order to suspend enforcement proceedings, or to sets aside the judgment, the Sheriff or bailiff must continue the enforcement process.
If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.
