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Following on from our previous blog in the debt recovery series, if your debtor does not voluntarily pay the money owed to you after a judgment  has been obtained, you may need to take steps through the Court to enforce the judgment. There are different ways to enforce a judgment and each method of enforcement action has its own merits.  You will need to take into account your situation, the amount of the debt and what is permitted by the Uniform Civil Rules 2020 (Court Rules) to decide which one suits you the best.

  • Investigation Hearing

If your  Claim less than $12,000, then before carrying out any other enforcement action, you must first apply for an Investigation Summons to be issued. The process of the Investigation Summons requires the Court Sheriff to personally attend on the debtor at his or her address and serve him with a Summons whereby they are summonsed to Court. Once at Court, the debtor will be required to to complete a financial statement disclosing his financial position to the Magistrate. The Magistrate will then assess the financial statement and make a payment order based on what the debtor can afford. For example, the Magistrate may make an order for the debtor to make regular fixed payments by instalments.

If the debtor has been served with the Investigation Summons but fails to attend to the Court hearing, the Court may make an Order at the hearing which will allow you to issue a Warrant of Apprehension against the debtor.  Once the Warrant of Apprehension is filed the debtor is apprehended by the Court Sheriff and brought before the Court in order to have a payment order made.

The Court fees and the fees required for the Court Sheriff to attend the premises for both the Investigation Summons and the Warrant of Apprehension are fixed by the Court and you may claim these fees from the debtor as part of the Judgment amount.

  • Examination Hearing 

If a repayment order is made against the debtor under the Investigation Summons enforcement step and the debtor fails to make payment of at least two instalments in accordance with the Court order, you can apply for an Examination Summons to be issued to the debtor. The debtor will be required to attend an examination hearing and explain why they have failed to make the payments and / or have a new repayment order made. If the debtor is unable to provide a valid reason or is unwilling to recommence payments or make payment of the dbet, then the Court may make an order for imprisonment of the debtor. 

  • Charging Order

If your debtor owns any real property (ie. land), you may apply for an Order to charge the property. A charge acts similar to a Caveat in that, once it is registered on the Certificate of Title of the property, the debtor cannot deal with the property until such time as your debt has been been satisfied and / or other agreement has been reached between you and the debtor. For example, you may agree to allow the debtor to sell the property provided he or she makes payment of the debt with money which it receives from the sale.  

  • Warrant of Sale

A Warrant of Sale can be issued against the debtor’s personal property or real property and once issued the Court Sheriff will take steps to take possession of and sell property owned by the debtor in order to realise funds to pay the judgment debt. However, there are certain types of personal property which cannot be seized such as ordinary clothing and necessary household items. A Warrant of Sale is the most extreme form of enforcement action and is normally only sought if no other enforcement action steps have been successful 

  • Garnishee Order

You can apply for a Garnishee Order requesting a third party pay debtor’s money to you (ie. the money to be paid to you from the debtors employer). However, this will only be granted if the debtor consents to it. As such, it is very rare for a Garnishee Order to be made in the Courts of South Australia.

  • Bankruptcy/Winding Up Proceedings

You may only start bankruptcy or winding up proceedings against the debtor if the claim is above the prescribed amount. If an individual debtor is declared bankrupt or company goes into liquidation then, subject to certain limitations, the  property of the individual or company will come under the control of a trustee (or liquidator if it is a company). The trustee or liquidator will take steps to realise any funds which may be available to the individual or company and these  funds will have certain deductions being taken from them such as trustee/liquidator fees and then the remainder is, to distributed in accordance with the priority of debtors. A debt which is secured by an asset (ie. a mortgage over real property) is paid as priority over unsecured debts. Both bankruptcy and winding up proceedings are expensive and complicated and often you will not receive the monies owed to you. Accordingly, you should consider whether it is commercially viable to commence this type of enforcement action before doing so.

 

Contact Clarke Hemmerling Lawyers on (08) 8333 2130 today if you have successfully obtained judgment in your favour but still have not received payment from your debtor. We can advise you on the various enforcement options and advise you of the most cost effective way to enforce the judgment and recover your money.

This Blog was written by Renee Hii, Solicitor at Clarke Hemmerling Lawyers.

This blog post does not constitute legal advice and should not be relied upon as such. It is a general commentary on matters that may be of interest to you.  Formal legal or other professional advice should be sought before acting or relying on any matter arising from this communication.