Enforcement of Civil Debt
If someone owes you a debt and they are refusing to pay, you can get assistance from the courts to help you recover your debt. The process of taking further court action to recover money from a debtor is called civil enforcement.
Before filing for civil enforcement, the creditor must have a judgement against the debtor. If a judgement is made in the creditor’s favour and the debtor still has not paid the amount owed, you can apply to the court for an enforcement order.
Enforcement proceedings all incur filing fees and may take some time depending on the enforcement process selected.
The court enforcement proceedings are:
- Warrant to seize property
- Attachment of earning order
- Instalment order
Warrant to seize property
A warrant to seize property gives authority to the sheriff to go to the debtor’s home or business address in Victoria and demand payment of a debt.
They will seize and sell any property or goods belonging to the debtor that can be sold to pay the judgement debt, unless the debtor pays the amount owed to the creditor.
To apply to the Magistrates Court for a warrant, you need to fill out and file a warrant to seize property form – Form 68A. Then, if the court issues a warrant, you can send the warrant to the Sheriff’s Office for enforcement.
Attachment of earnings order
An attachment of earnings order is a court order that allows creditors to take money directly from a debtor’s income.
Keep in mind that you cannot apply for an attachment of earnings order if another enforceable action is already in place.
The process includes filing an attachment of earning summons – Form 72A and an affidavit in support of attachment of earnings – Form 72B with the Magistrates Court.
Then, after the documents have been served a hearing date will be set. It’s imperative that the creditor attends court on the hearing date, or risk their application being dismissed. If the registrar finds in favour of an attachment of earning order, then an attachment of earning order – Form 72F will need to be filed with the Magistrates Court, which incurs an additional filing fee.
The final order must be served to the debtor and their employer. This is to ensure that the debt is enforced through the employer rather than relying on the debtor who has refused to pay the debt thus far.
An instalment order is a court order to allow the debt to be paid in instalments, whether that be in weekly, fortnightly, or monthly intervals. This is an order that both creditors and debtors can apply for.
If an instalment order is granted, the creditor cannot take any further action to enforce the debt unless there is a change in debtor’s financial position or inaccurate financial information was given.
To apply for this order, you must file an instalment order – Form 61A with the Magistrates Court.
To determine the best enforcement proceeding to pursue, you can apply for a summons for oral examination. It requires the debtor to attend court and give details about their financial circumstances, including, but not limited to their assets, income and debts.
A summons to attend for oral examination – Form 67A must be completed and filed with the court. If granted an oral examination, the debtor must attend court to answer questions about their financial position under oath. The court will send the creditor a copy of the answers to assist in deciding the best method of enforcement.
A rental car company, Company A, hires out a car to Person B. Person B signs a rental agreement stating that in the event of an accident, Person B will need to cover the car insurance excess. However, Person B gets into an accident and upon returning the rental car, refuses to pay the excess payment.
Company A then obtains court judgement ruling that Person B does indeed owe them the excess payment amount. However, Person B still does not pay the amount owed.
Company A can now apply to the Magistrates Court to enforce the judgement. First, they apply for a summons for oral examination, and once granted Person B attends court to give information about their financial position. With this information, Company B decides to apply for an attachment of earnings order to recover their debt, so that the amount owed will be paid to them out of Person B’s income.