If there is a judgment that says the other party must pay you money or return your goods and they don't do this, there are some things you can do.
This process is called 'enforcing the judgment' or 'enforcement'.
When can you enforce a judgment?
You can start enforcement if the other party doesn’t do what is set out in the orders, within the time given in the judgement. This is usually 28 days. You must wait until the time given has passed before you can begin enforcing the court judgment.
After the time given in the judgement has passed, you can start enforcement action unless the other party has:
- lodged an appeal
- made an application to have a default judgment set aside
- made an agreement with you to pay off the judgment debt by instalments
- made an application to the court to pay the judgment debt by instalments.
What can you enforce?
You can enforce orders for money or goods as set out in the judgment, including costs and pre judgment interest.
You can add the costs of enforcement, such as filing and service fees.
You may be able to add interest to the debt from the date of the judgment until it is paid. This is called post-judgment interest. You can only claim this if the other party does not pay all of the judgment debt within 28 days of the date of judgment.
Things to consider before enforcing a judgment
Before you start enforcing the judgement, consider whether the defendant has any income or assets to pay the debt, or pay for the value of the goods if the goods can’t be returned. You will have to pay fees for some types of enforcement action. These fees will be added to the judgment debt. If the defendant does not have any way of paying you, you may end up wasting your money.
There are a number of different ways you can enforce a judgment and you should think about which option will be best in your situation. If you are not sure, you should get legal advice.
If you don't have any information about the other party's financial situation, you can ask them to provide information about their income, expenses and assets. This is done with an examination notice. For more information, see Step by step guide - Examination notice.
If they don't respond within a certain time, you can ask the court to order them to come to court so they can be questioned about their income, expenses and assets. This is called an examination order. For more information, see Step by step guide - Examination order.
You can ask the court to make an order that the sheriff take and sell property belonging to the other party. The sheriff can then sell this property to pay the debt.
In some cases having the sheriff come to their door will encourage the other party to try to make arrangements to pay you.
For more information, see Step by step guide - Writ for levy of property.
If you have a judgment for goods you can apply for a writ for the delivery of goods.
A writ for the delivery of goods, is a court order that allows the sheriff to:
seize (take) the goods and return them to you, or
recover the value of the goods by seizing other property belonging to the other party and selling it.
A writ for the delivery of goods is valid for 12 months.
You can only use this if the court ordered that the other party return your goods and they did not comply with the order. If the court ordered the other party to pay you money equal to the value of the goods you can use the other enforcement options described on this page.
For more information about applying for a writ for the delivery of goods, see Step by step guide -Writ for levy of goods.
A garnishee order is an order from the court to have money taken from:
- the other party's bank accounts
- the other party's wages
- someone else who holds money on their behalf. For example, a real estate agent who collects rent on their behalf.
The person the order is addressed to (the employer, bank or person who owes money to the other party) is known as 'the garnishee'.
There are two types of garnishee orders:
- Garnishee order for wages or salary
- Garnishee order for debts
Click on the topics below for more information.
A garnishee order for wages or salary is a court order that allows you to recover the judgment debt from the other party's wages.
The other party's employer will be required to garnish (withhold) some of the other party's pay (their wages or salary) to repay the debt. The employer is required to leave the employee with a minimum amount of money to live on, called a weekly compensation amount. Any amount that the employee earns above the weekly compensation amount can be garnished to repay their debt.
The employer must continue to garnishee their employees’ wages until the whole debt has been paid or the court makes another order.
To get a garnishee order for wages or salary, see Step by step guide - Garnishee order for wages or salary.
A garnishee order is a court order requiring you to garnish an employee’s wages or salary to repay a debt they owe.
If you have received a garnishee order for an employee it means they owes someone money under a court judgment.
For more information, see Employers served with a garnishee order.
A garnishee order for debts is a court order that allows you to recover the judgment debt from the other party's bank account or someone else who owes the other party money, for example rental income.
A garnishee order for debts can be addressed to:
- a bank or financial institution where the other party has an account or
- the person who holds money on behalf of the other party, such as a real estate agent who collects rent for them.
The bank, financial institution or person does not have to comply with the order unless the other party's account has a minimum amount of money to live on, called a weekly compensation amount, plus $20.
If the money in the other party's bank account does not cover the whole judgment debt, you can apply for another garnishee order.
Once paying you, the garnishee is allowed to deduct up to $13.00 for administration expenses. This doesn't come out of the money owed to you.
If the other party receives a government pension or benefit, it can be difficult to recover your money from a garnishee order sent to their bank account. This is because all or part of the money in their bank account may be protected from the garnishee order. If you want to garnish the bank account of a person that receives government benefits you should get legal advice.
For more information about garnishee order for debts, see Step by step guide - Garnishee orders for debts.
If the judgment debt is more than $10,000 you may be able to make the other party bankrupt by applying to the Federal Circuit and Family Court or the Federal Court. This is an expensive and complicated way of enforcing a debt. Before taking this action, you should get legal advice.
Winding up is similar to bankruptcy. To wind up a company you must show that it is insolvent (unable to pay its debts). This can be done by issuing a statutory demand. If the other party does not respond to a statutory demand within 21 days you can file an application for a winding up order in the Supreme Court.
This is an expensive and complicated way of enforcing the debt. Before taking this action, you should get legal advice
If you won your case there will be a judgment against the defendant. You can claim interest on the unpaid amount if:
- the claim was for more than $1,000.00
- the defendant does not pay the judgment within 28 days of the judgment
- there are no specific orders about what happens with interest
This is called 'post-judgment interest'.
For more information about how to work out post-judgment interest, see Step by step guide - Working out post-judgment interest.
If the court has made specific orders about interest and you need help calculating interest, you should get legal advice.
A stay of enforcement (sometimes called a stay of proceedings) is an order of the court that stops you from enforcing the judgment debt for a period of time.
The other party may apply for a stay of enforcement where:
- they have applied to set aside a default judgment and want enforcement stopped until the court deals with the application.
- if they want time to make arrangements to borrow money or sell property to pay the debt.
For more information on what you can do if the other party applies to set aside a default judgment, see Step by step guide - Responding to an application to set aside default judgement.
The other party can apply for a stay by filing a notice of motion form, with affidavit evidence that explains why they need a stay of enforcement. They may apply for a temporary stay to stop any enforcement action before their application is heard in court. The court can then make a temporary order without a hearing.
If you agree with the stay
You will be sent a notice giving you a copy of the other party's application and telling you the date the application will be heard in court. When you go to court, you can either consent (agree) with the stay, or disagree.
If you consent, an order staying enforcement will be made for the period of time asked for in the application or any other time the court decides to make it for.
Before deciding to consent, you should get legal advice.
If you disagree with the stay
If you disagree with the stay, you should attend the hearing and explain the reasons why you don't agree with the application. In some cases you may need to prepare your own affidavit. You should get legal advice if an affidavit is required.
You may wish to oppose the application to stay enforcement because, for example:
- you think the other party may be transferring or selling assets to avoid paying you, or
- the other party has avoided paying the debt for a long time.
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