Text Size a a PrintPrint this page

If they still do not pay - enforcement process

 

What are enforcement proceedings?

If the court has made an order that someone owes you money and they still do not pay, you may want to start 'enforcement proceedings'. There are two common ways of doing this:

  • by a means inquiry, or
  • by a property (seizure and sale) order

The following terms are used:

  • Judgment creditor means the person who the court says is owed money (you).
  • Judgment debtor means the person who the court says owes you money.

Is there a time limit for applying for enforcement orders?

Yes. You must make an application for an enforcement order within 12 years from when judgment was given. If six years have passed since the judgment, you must obtain the leave, or permission, of the court to apply for certain enforcement processes.

What is a means inquiry?

It is important to get legal advice before going to a means inquiry hearing.

A means inquiry hearing is where the court decides if the judgment debtor can pay the debt. You can ask the court for a hearing. Usually the judgment debtor comes to court and answers questions under oath or affirmation from you about their income, expenses, assets and debts. Orders for payment can be made if the court decides that the judgment debtor can pay.

Why is a means inquiry a useful first step in enforcement?

Unless the judgment debtor willingly pays you, it will cost you money in enforcement costs to try to get payment. Information you find out at the means inquiry about the judgment debtor's income, expenses and assets helps you to know which enforcement option is best to take to get the money you are owed.

For example, the judgment debtor may have no money or assets and it may not be worth taking any action until their situation changes.

How do I get a means inquiry?

You will need to lodge a form and pay an application fee at the court where the judgment was made. Then a date will be set for the means inquiry hearing.

You will need to:

  • Decide if you want the judgment debtor to bring any records to court that will be used at the means inquiry.
  • Decide whether to ask the court to summons other people who you think should be at court to give or bring evidence about the judgment debtor's financial situation.
  • Set out the amount owed, including any money that has been paid, adding any interest due, and any other enforcement costs.

Get legal advice.

Either you or the judgment debtor can ask for the means inquiry to be at a different court. The court will listen to both of you and then decide what is more convenient, or fair, for both of you. The court will then set a date and location.

What does the judgment debtor have to do?

The judgment debtor will be required to complete a form (Form 38) called a Statement of financial affairs and bring the form to court. For an exception to this see below under the heading What if the judgment debtor does not go to the means inquiry?

Do I have to go to the means inquiry?

If you, or your lawyer if you have one, do not go to the means inquiry hearing the court may order that you pay the judgment debtor's costs.

What if the judgment debtor does not go to the means inquiry?

The judgment debtor could be found in contempt of court for not going. They could be fined or imprisoned. However, if the court decides that a judgment debtor is unable to attend the means inquiry through illness or other special circumstance, it may order the judgment debtor to complete and lodge the Statement of financial affairs in the form of an affidavit (Form 38B).

The court may make an order for costs in your favour.

What happens at the means inquiry?

You must ask the judgment debtor questions about:

  • their financial situation, including income, assets, and expenses, and
  • the financial situation of their partner and/or dependants

The court may decide the judgment debtor cannot pay the debt at all and make no order.

If the court believes the judgment debtor can pay the debt it could order:

  • Payment of the debt in regular instalments (an instalment order).
  • Payment of the debt straight away or by a set date (a time for payment order).
  • The judgment debtor's employer to pay part of their wages to you (an earnings appropriation order). The court can only make this order if a previous instalment order has been disobeyed and cancelled.

After a means inquiry you can ask the court to make one of these orders if you have not already done so.

You must give the judgment debtor details of where money is to be paid. The court cannot accept payments.

A means inquiry can be put off. For example, if it comes out at the inquiry that the judgment debtor owns land that can be sold, you could decide it is a better way to get your money to ask the court for an order to sell their land - a property (seizure and sale) order.

What if the judgment debtor fails to pay the debt after an order is made by the court?

Get legal advice.

What if the means inquiry shows the judgment debtor has no money or assets?

You have got 12 years from the date the judgment comes into effect to seek enforcement. Sometimes this is when it is given or sometimes an earlier or later time as ordered by the court.

In some situations you will need the court's permission before you can get an order to enforce a judgment. Get legal advice.

If the judgment debtor's financial situation improves you can ask for another means inquiry to be held.

What is a property (seizure and sale) order?

It is important to get legal advice before applying for a property (seizure and sale) order.

A property (seizure and sale) order allows the Sheriff or bailiff, to seize and sell the judgment debtor's personal property or real estate (eg house or land) to pay the money the court says is owed to you. This will include the judgment debt, interest, and enforcement costs.

How do I apply for a property (seizure and sale) order?

You can fill out a form at court asking the bailiff to seize and sell personal property or real estate (eg house or land) of the judgment debtor to pay the debt. You will need to pay a fee at court. You can get the form from the Magistrates Court of WA.

Should I get a property (seizure and sale) order?

Get legal advice. It is up to you to find out whether the judgment debtor has any goods or land that can be seized and sold. It is your responsibility, not the court's to decide if this process is likely to be successful. You will need to set out where the personal property is located and the details of real estate, such as certificate of title information.

If a property (seizure and sale) order is issued, it is sent to the bailiff who is responsible for seizing the goods. Personal property is to be sold before the bailiff can seize and sell real estate.

There is certain property that cannot be seized by the bailiff. Get legal advice.

Can I stop the process?

You can stop the process at any time by asking the Sheriff or bailiff to stop enforcement and return the order to court.

Can the judgment debtor stop the seizure and/or sale of property?

The judgment debtor could:

  • Pay the judgment debt, interest and enforcement costs.
  • Negotiate with you to arrange payment of the debt.
  • In some circumstances apply to put the property (seizure and sale) order on hold (this is called a "suspension order"). Get legal advice.

If the judgment defendant disputes the debt is owed, they could apply to set aside the default judgment if there are grounds. Get legal advice.

Until the court makes an order directing the Sheriff or bailiff to suspend enforcement, or sets aside the judgment, the Sheriff or bailiff has to continue the enforcement process.

What happens after goods or land is sold?

The bailiff will first pay any costs, for things such as storage and removal of goods and auction fees. Money is then given to you to cover the judgment debt, interest, and enforcement costs. If you are still owed money, you can take further action to get the judgment debtor to pay.

Where can I get more information?

  • Contact Legal Aid WA's InfoLine on 1300 650 579
  • Go to the Magistrates Court of WA website or a registry for more information including information sheets and the forms you may need
  • On bailiffs go to Bailiffs

Last reviewed: 23/02/2012

Last Modified: 23/02/2012

Disclaimer

The material displayed on this page is intended for information only. If you have a legal problem, you should see a lawyer. Legal Aid Western Australia believes that the information provided is accurate, however does not accept responsibility for any errors or omissions.