Picture this — you have just won a legal battle against someone and a judgment for damages and costs has been made in your favour. However, even after the court has ordered that the debt be paid, the debtor has failed to pay. What can you do to force the debtor to pay the debt that they owe to you?
What is an enforcement proceeding?
An enforcement proceeding is a legal proceeding that forces a debtor who has had a judgment made against them to disclose information about their financial situation in order to determine if, and how, the debtor may be able to repay the debt owed.
Where a plaintiff initiates enforcement proceedings, the debtor will be required to appear at an enforcement hearing where the will question them about their financial position in order to determine the best way to enforce athe judgment.
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Types of disputes heard by QCAT
Commencing enforcement proceedings
Under the Uniform Civil Procedure Rules 1999 (Qld) (the UCPR) a creditor has six years (from the date of judgment) to start enforcement proceedings.
Before applying to a court for an enforcement hearing, a creditor must send a statement of financial position (UCPR form 71) to the enforcement debtor, and the completed statement must be returned within 14 days. The statement requires the debtor to disclose all relevant information about their assets and liabilities.
After the creditor either receives a completed statement or a completed statement hasn’t been returned within 14 days, they can apply to a court for an enforcement hearing. The application must be accompanied by an affidavit that states the unpaid amount, and whether the creditor has received a completed statement of financial position or not (and whether they’re satisfied with the information in the completed statement).
The court will then issue an enforcement hearing summons to the debtor requiring them to attend the enforcement hearing and produce required financial documents.
If the debtor refuses to make payment, the creditor may apply for an enforcement warrant. The type of warrant issued will depend on the debtor’s financial situation, and whether or not they own any assets.
The main types of enforcement warrants are:
- Warrant for seizure and sale of property
- Warrant for redirection of earnings
- Warrant for redirection of a debt
- Warrant for regular redirections from financial institutions
- Order for payment by instalments
Warrant for seizure and sale of property
This warrant authorises an enforcement officer to attend private property and seize the debtor’s real and personal property, to be sold at public auction to satisfy the debt. The officer cannot seize basic household property (such as household furniture, a refrigerator or television), or property that the debtor needs to make a living (such as a vehicle or trade tools).
Warrant for redirection of earnings
This warrant (sometimes called a garnishee order) authorises a third party (usually an employer) to redirect part of the debtor’s earnings to the creditor until either all of the debt is paid, or the warrant is set aside or expires.
Warrant for redirection of a debt
This warrant authorises a creditor to recover the debt from a third party who holds money for the debtor.
Warrant for regular redirections from financial institutions
This warrant is served on a financial institution (as well as the debtor). If someone regularly makes payments to the debtor (such as their employer), the financial institution can be ordered to automatically take money from that account and pay it to the creditor until all of the debt is paid (or the warrant is set aside, varied, or expires).
Order for payment by instalments
Similar to an enforcement warrant, this order requires a debt to be repaid in regular instalments, such as in weekly, fortnightly or monthly instalments, until the debt is paid (or the court orders otherwise). A debtor or creditor can apply for such an order, and no further action can be taken to enforce payment while the order is in place.
Why choose Gibbs Wright Litigation Lawyers
Whether you require legal representation to protect your rights in an enforcement proceeding against you, or you want someone to vigorously fight for you in order to ensure that a judgment is enforced, Gibbs Wright Litigation Lawyers have the skills and experience required to get the job done — and done well.
Contact Gibbs Wright today for a free, initial consultation with one of our experienced litigation lawyers to explore your legal options.
- Commercially viable outcomes
- Dedicated litigation firm
- Outstanding client satisfaction
- High success rate
- Direct contact with your lawyer
- Brisbane-based litigation team
Frequently Asked Questions
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