Enforcing a judgement made by a court or tribunal may occur when an order has been made for the payment of a debt, however the defendant has not complied with the terms of the judgement.
A judgement may be enforced in a number of ways; some avenues require the creditor to have evidence that the debtor is able to pay the debt.
Enforcing a Judgement: Letter of Demand
The creditor may consider sending the debtor a letter of demand before taking enforcement action.
This attempt in sending the enforceable money order with a letter of demand saves the costs of enforcement processes if the debtor decides to pay the judgement debt.
This is not a requirement when enforcing a money order, the letter is simply a formal demand to the debtor to pay the debt owed before legal proceedings are commenced.
Be referred to the best debt recovery lawyers on the Sunshine Coast
Enforcing a Judgement: Statement of Financial Position & Enforcement Hearing
Enforcement hearings and statements of financial position are helpful in providing the judgment creditor with the required information to request an enforcement warrant pursuant to chapter 19 Part 2 of the Uniform Civil Procedure Rules 1999 (QLD) (“UCPR”).
To begin with, a statement of financial position (form 71) is generally sent to the debtor with a request that it be returned within 14 days.
This statement incudes very detailed sections surrounding the debtor’s income, expenses, assets, liabilities, proposal of payment, and verification of statement.
If the debtor doesn’t provide all of the information required or fails to respond, the creditor can apply for an order that they attend an enforcement hearing.
To achieve this, an Application (form 9), an Affidavit (form 46), and an Enforcement Hearing Summons (form 70) must be filed.
An Enforcement Hearing requires the debtor attendance, along with information on their finances and any documents requested prior to the hearing within the summons.
Without the debtor’s attendance, a warrant for their arrest may be issued.
The creditor must also attend the Hearing and if payment cannot be agreed upon, the court may then issue an enforcement warrant.
Enforcing a Judgement: Enforcement Warrant
Once the creditor has obtained the information required from either the statement of financial position or enforcement hearing, they may apply for an Enforcement Warrant.
To apply for an Enforcement Warrant, the creditor will need to file an Application (form 9), a Statement Supporting Application for an Enforcement Warrant (form 74) and a Warrant (either form 75, 76, 77 or 78).
The warrant will be issued at the court’s discretion. Once issued the warrant is then served upon the enforcement debtor (or other persons included or required under the warrant).
Different avenues of enforcement warrants may require additional steps and information.
An enforceable money order is to be enforced within six years from the date of the order, unless leave has been granted by the court, to reserve the rights of the enforcement creditor.
Enforcement Warrant: Seizure and Sale of Property
A warrant for seizure and sale of property is an enforcement option pursuant to the UCPR.
This type of enforcement warrant allows the creditor to enforce the order on the debtor’s property.
This is generally real property such as land. However, it may also be personal property, although not exempt property.
An enforcement warrant for the seizure and sale of property requires a sheriff or bailiff to seize and sell property owned by the debtor at a public auction.
To apply, a creditor will need to know what property the debtor owns that may be seized. The creditor must pay a deposit as security for any costs the bailiff may incur under the warrant in seizing the property.
The amount obtained will pay for the debt plus any costs (eg. Real estate commissions, subcontractor payments) and interest.
The warrant may be directed against the debtor’s real estate. A certified copy of the warrant must show the address of the property the writ is over through a Current Title Search. A valuation must also be provided by a registered valuer.
The property may be sold within six months of the warrant being registered. If the debtor wants to sell or refinance the property in that time, the creditor can recover the amount of the debt and their reasonable costs of removing the warrant.
Enforcement Warrant: Redirection of Debt
An enforcement warrant for redirection of debts is an enforcement option pursuant to the UCPR.
This warrant directs someone who owes money to the enforcement debtor to pay the money to the enforcement creditor instead. In order to apply for this enforcement warrant, there must be a debt presently due by a third party.
Rule 793 of the UCPR states that a “third person” means a person (including the State) from whom a debt is payable to the enforcement debtor; or is likely to become payable to the enforcement debtor.
In deciding whether to issue an enforcement warrant authorising redirection, including regular redirection under division 2, the court will consider whether the enforcement debtor has adequate means of satisfying the order after deducting the necessary living expenses of the debtor and their dependants, any other known liabilities of the debtor, whether it would impose unreasonable hardship on the debtor, and whether, having regard to the nature of the debt (belonging to the enforcement debtor from the financial institution) and the type of redirection, a regular redirection or otherwise, is appropriate.
If these factors are satisfied, the court will generally issue the warrant.
Enforcement Warrant: Redirection of Earnings
A warrant for redirection of earnings is an enforcement option pursuant to the UCPR.
This particular type of enforcement warrant seizes part of the wages of the debtor each pay and forwards it to the creditor. In applying for an enforcement warrant for the redirection of earnings, the creditor must file a Statement of Financial Position, this maybe obtained through an Enforcement Hearing, to enable the court to determine the amount the warrant will be issued for.
This warrant is directed to both the debtor and the debtor’s employer.
Similar to the previous enforcement warrants above, the application consists of the application, a statement in support of the application, and a draft enforcement warrant.
When the Court issues the UCPR enforcement warrant for redirection of earnings, it then needs to be served on the debtor and the debtor’s employer.
Enforcing a Judgement – Sunshine Coast
In conclusion, an enforceable money order may be enforced through a number of different avenues such as an enforcement warrant.
This may be an enforcement warrant for the seizure and sale of property, redirection of debt, or redirection of earnings.
If you believe you may be eligible to issue an enforcement warrant on a debtor or would like more information, please use our website to find a suitable debt recovery lawyer or litigation lawyer within the best of the Sunshine Coast.
This process involves difficult steps and it is strongly recommend you engage a legal professional.
Be referred to the best debt recovery lawyers on the Sunshine Coast