There are several ways of enforcing a Judgement Debt in Victoria against Judgement Debtors including the following:
- Instalment Orders;
- Warrants to Seize Property;
- Garnishee Orders.
These procedures are set out under Section 111 of the Magistrates Court Act 1989, under Section 53 of the County Court Act 1958 and under the Supreme Court (General Civil Procedure) Rules 2005.
Instalment Orders in Victoria are provided in the legislation of the Judgement Debt Recovery Act 1984. The Judgement Creditor or Judgement Debtor can each apply for the Instalment Order under the Act pursuant to Order 61 of the Civil Procedure Rules which is normally dealt with a Register of the relevant Court. The Court can require the Debtor to be orally examined which involves the Debtor attending Court and answering questions regarding the situation and the Debtor may then agree to pay off the Judgement Debt by instalments over a set period of time. Either party can request an Instalment Order be cancelled or varied on two (2) grounds:
- That the property or the income of the Debtor has increased significantly; or
- That the information provided in support of the application was inaccurate.
Furthermore, Section 11 of the Act also provides that the parties are free to make an arrangement between themselves regardless of whether an Instalment Order is in force or not.
Warrants to Seize Property – Warrants for Delivery
Courts may also issue Warrants to Seize Property when enforcing a Judgement in Victoria and then sell those items or in relation to goods, which are to be delivered to the Judgement Creditor. This procedure is usually carried out by the Sherriff’s Office. The Warrant and the Sherriff’s Office generally give the Judgement Debtor an opportunity to pay the debt and if the debt remains unpaid, authorise the Sherriff’s Office to seize and sell the items belonging to the Debtor to pay the amount owing, as well as the Creditor’s costs and the Sherriff’s costs.
The Sherriff’s Office has powers which are regulated pursuant to the Sherriff’s Act 2009. The Sherriff must ask for the Debtor’s consent to enter premises and must have a reasonable suspicion that the goods listed in the Warrant are located in the premises. The Debtor may still refuse the Sheriff’s Officers to enter the premises and the Sherriff’s Officer may use reasonable force to carry out the Warrant under Section 21 of the Act.
It is also an offence to dispose of, to deface or to destroy items contained in the Warrant. It is important to know, however, that certain goods are protected and the Sherriff cannot seize these items, similar to items protected from a Bankrupt person. These include basic personal items including the principal means of transport, work related items and basic household goods and furniture, as well as items that are jointly or severally held with another person. If these items are seized, the non-responsible owner can apply to the Court for the return of these items along with costs.
Attachment of Earnings – Debt Orders
Attachment of Earnings and Attachment of Debt Orders compel a third party to pay the Judgement Creditor on behalf of the Debtor. Attachment of Debt’s Orders generally refer to any debt which is payable by the Debtor on the day that the Order is made regardless of whether the money has been deposited into the Debtor’s bank account. The third parties refer to as a Garnishee.
Attachment of Earnings Orders compel the Debtor’s employer to deduct amounts from the salaries and wages in instalments. Debtors are required to provide information in relation to their earnings, salaries and wages. It is an offence to withhold or provide false information in relation to earnings and is also an offence not to comply with the Order. However, employers cannot dismiss an employee because of such an Order.