Enforcing a Civil Judgment
If you’ve been to court and won your case, but the Defendant is not following the Court’s orders there are a few methods you can use to enforce the judgment, including:
Writ for Delivery of Goods
Writ for the Levy of Property
It’s important to remember that you only have 12 Years from first judgment to make a claim, so don’t leave it too late.
You can get copies of all of the forms mentioned below by visiting your local courthouse, or online at: http://www.lawlink.nsw.gov.au/lawlink/spu/ll_ucpr.nsf/pages/ucpr_forms
Once the Court has made its judgment, some of the terms for the people involved change:
The Plaintiff (the person who brings the matter to court) becomes known as the Judgment Creditor.
The Defendant (the person defending the accusation) becomes known as the Judgment Debtor.
Other important people include:
The Sheriff- an Officer of the Court who has the power to collect goods on behalf of the Judgment Creditor.
Garnishee- the person who holds the Judgment Debtor’s money. This can include a Bank, employer, real estate agent collecting rent for a Judgment Debtor’s investment property, or anyone who owes money to the Judgment Debtor (eg outstanding payments for goods or services they have supplied).
Sometimes, before you can decide on the best option for enforcing the Court’s decision you need to know what income or assets the Judgment Debtor has. You can find out using a process called Examination.
The first step in the Examination process is to send the Judgment Debtor a form that asks them questions about their income, assets, debts and dependents. This form is known as an Examination Notice.
You will need:
Form 51 - Examination Notice for Individuals; OR
Form 52 - Examination Notice for a Company
The form does not need to be lodged with the Local Court. You simply need to fill in the Judgment Creditor sections, and then post the form to the Judgment Debtor directly so that they can complete their sections.
The Judgment Debtor has 28 days to complete the form and return it to you. You can use the information they provide to help you decide what steps to take next.
If the Judgment Debtor doesn’t respond to the Examination Notice within the 28 days, or they provide incomplete or unsatisfactory answers you can apply to the Court for an Examination Order. This will require the Judgment Debtor to appear in court in person to answer the Examination questions.
You will need to complete the following forms:
Form 53 - Notice of Motion Examination Order
Form 54 - Examination Order
The forms need to be lodged with the same court that made the original judgment. You will need to provide 3 copies of each form, as well as copies of the Examination Notice that you have already sent. There will be a filing fee of $78 ($156 if you are filing on behalf of a corporation).
The court will then stamp (‘seal’) the copies, and you will need to ‘serve’ a copy on the Judgment Debtor. You can either do this by handing it to them directly, or by leaving it with them along with an explanation of what it is.
Once the Examination Order has been served you will then have to complete an Affidavit of Service (form 41 via the link above), and lodge that with the Local Court.
The Court will set a date for the Examination hearing. Both you and the Judgment Debtor will need to attend in person on the day. If the Judgment Debtor doesn’t turn up, the Court can send them a notice that they have 14 days to come to court or they will be arrested.
The hearing is generally informal. Usually, you and the Judgment Debtor sit down together and you ask them the same questions that were on the Examination Notice form. Normally, you ask the Judgment Debtor the questions yourself. However, if you think that they might be lying you can have the Court Registrar conduct the questioning.
Once you have satisfactory answers to the questions you will be able to use the information to decide which enforcement method will work best so that you can get the money or goods that you are owed.
Writ for the Delivery of Goods
If the judgment was for specific items (eg a car, TV etc) to be returned to you, and the Defendant has not done so, you can apply for a writ that allows the Sheriff to repossess the items on your behalf.
If that is no longer possible (eg items destroyed or sold) then the Sheriff has the power to take other items to sell off to give you the money value.
You will need to complete:
Form 63 - Notice of Motion - Writ for the Delivery of Goods; AND
Form 64 - Writ of Delivery
The Notice of Motion must be signed before an approved witness (eg a JP). You’ll need to make 3 copies of each form, and file them at the same court as the original statement of claim. There’s no filing fee, but there is a charge of $76 for each time the Sheriff goes to the Defendant’s house to try to collect the goods.
The writ is valid for 12 months. You don’t need to go to court.
If the Judgment Debtor owes you money you can apply to the Court for permission to take that money from their bank account, wages, or from any other source of income they might have. This is known as ‘garnishing’, and the person who holds the money on behalf of the Judgment Debtor (eg the Bank, employer) is known as the ‘Garnishee’.
You can apply to garnish money from:
Anyone who owes the JD money
You can’t garnish all of a Judgment Debtor’s weekly income. They must be left with enough money to pay their living expenses. Currently, the minimum amount of wages or salary that must be left for the debtor is $452.60 per week.
You can’t garnish Centrelink payments. If the person’s only income is Centrelink benefits you can apply for an Examination to determine what other assets they have, or try a different enforcement option.
To apply for a Garnishee Order you will need to complete:
Form 69 - Notice of Motion Garnishee Order; AND
Form 71 - Garnishee Order for Wages or Salary or Form 70 - Garnishee Order for Debts (depending on where the money will be taken from).
The Notice of Motion must be signed before an approved witness (eg a JP). Both forms need to be filed at the same court as the original Statement of Claim. No filing fee applies. You need to submit 3 copies of each form.
The court will then stamp (‘seal’) them. You then need to post or hand a sealed copy to the Garnishee.
Once the order has been served, the Garnishee has 14 days to start to pay you. They are allowed to charge up to $13 per installment for administrative costs, but this doesn’t come out of the money you are owed. Payments will continue to be taken until the debt has been paid in full.
If the Judgment Debtor doesn’t have the money to pay you in cash, you can apply to the Court for an order to seize and sell their property to raise the money you are owed.
Certain types of property cannot be seized, including:
Property that doesn’t belong to the Judgment Debtor
Anything that is being hired or rented
Bedroom or Kitchen furniture
Tools, instruments or books that the Judgment Debtor needs to do their job up to the value of $2000
To apply for an order to seize and sell property you will need to complete:
Form 65 - Notice of Motion Writ for the Levy of Property; AND
Form 66 - Writ for the Levy of Property.
The Notice of Motion must be signed before an approved witness (eg a JP). You’ll need to make 3 copies of each form, and file them at the same court as the original statement of claim. There’s no filing fee, and you won’t need to go to court.
If the Judgment Debtor doesn’t have enough goods to cover the full cost of the debt, or if they refuse to let the Sheriff onto their property, the Sheriff can keep coming back for up to 12 months. There will be a charge (to you) of $76 each time they do. The Sheriff will also take 3% of the sale price of any item that is sold. If, after 12 months the debt has still not been paid in full you can apply for another Writ to Levy Goods, or try a different enforcement method.
There are strict penalties ($5,500 fine) for Judgment Debtors who deliberately give away or destroy their property to avoid having it seized by the Sheriff.
At any time, the Judgment Debtor can apply to the Court for permission to pay the outstanding debt by installments.
If the Court grants an installment plan and you don’t agree you have 14 days to appeal. You will need to complete the following form and lodge it at the Local Court:
Form 50 - Notice of Motion Objection to Installment Order or Order Refusing Installment Application
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Writ for the Levy of Property
Disclaimer: This information is a general guide to the law. It should not be relied on as legal advice. If you have a specific legal problem you should consult a lawyer.
It applies to people who live in, or are affected by, the law as it applies in NSW, Australia. The information contained in this publication is current at 1 January 2014.