How to get money you are owed

Introduction

This page provides information for people who are owed money after making a small claim through the Local Court.

If the court decides a person or organisation, known as the debtor, owes you money, they should pay you immediately.

If they don’t, there are several court processes you can use to get your money. This is also called enforcing judgment.

These are: 

  1. Being paid in instalments – known as an instalment order.
  2. Seizing the debtor’s goods.
  3. Being paid directly from the debtor’s earnings – known as an attachment of earnings order.
  4. Being paid by someone who owes the debtor money – known as a garnishee order.

Some of the costs of enforcing judgment can be added to the amount owing. For example, you can only claim certain amounts for the bailiff fee. A bailiff may charge more than you are able to to claim.

A debtor cannot be fined, imprisoned or arrested for non-payment of debt.


Being paid in instalments

The court may make an order for the debtor to pay you the money in small amounts over a period of time. This is called an instalment order. 

If you agree on payment terms 

If the court doesn't make an instalment order, and you and the debtor agree on payment terms, you can apply to the court to make an instalment agreement.  

You and the debtor must:

  1. Complete the instalment agreement.
  2. Sign the instalment agreement.
  3. File it at the Local Court in seven days of you, the creditor, signing the agreement.  

If you don't agree on payment terms  

If you and the debtor cannot agree on payment terms, the debtor must apply for an instalment order.

They must: 

1. Complete either:

And also: 

2. File the documents at the Local Court
3. Give copies of these documents to you. 

The court's decision 

The court looks at the application and consider any objections you may have. 

They may refuse an application if the debtor has: 

  • proposed new instalment amounts that are too low for their income and outgoings
  • or if they haven’t given enough information on their finances. 

If you disagree with the court's decision 

If you or the debtor disagree with the decision, you can both apply for the matter to be heard by a judge or judicial registrar.

You must: 

1. Complete both: 

  • a notice of objection
  • an affidavit stating the reasons for the objection.

2. File the documents at the Local Court

The judge or judicial registrar will look at the new terms suggested by the debtor and decide whether to change them, and grant or refuse an instalment order.

If the debtor’s financial circumstances change

If the debtor can no longer meet the terms of the new order, you can file:

  • an application for variation or cancellation of order for payment of judgment debt by instalments
  • a fresh judgment debtor’s declaration of financial circumstances.

If you believe there has been a large increase in a debtor’s property or means, you can apply for a variation of the instalment order.


Examining the debtor’s finances

You can apply to the court for the debtor's finances to be looked at by a lawyer or the court registrar. This is called an examination summons. 

The debtor must attend a hearing. 

The debtor must provide a list of weekly costs, such as the following:

  • rent
  • food
  • childcare
  • medical
  • other expenses.

They should also propose a payment plan

If they have already paid some of the debt they must provide receipts.

If the debtor doesn't attend the hearing

If the debtor avoids examination, you can apply for a private bailiff to arrest them and bring them to court. 

This is called a warrant of arrest on disobedience to summons.


Seizing the debtor’s goods

Once you have been granted a warrant of seizure and sale by the court, you can request a bailiff to take and sell the debtor’s goods to pay the debt, plus any costs and interest.

What the bailiff does 

The bailiff will visit the debtor's home to explain the process. 

They can only take personal property of the debtor's that they fully own. 

This includes:

  • money
  • furniture
  • televisions
  • electrical appliances
  • cars.

They cannot take items that are any of the following:

  • belong to someone else
  • rented or are on hire purchase
  • are jointly owned with a spouse or relative.

The debtor can keep essential goods for living and work, such as clothing and tools of the trade.

Seizing goods without taking them away 

A bailiff can seize goods without actually taking them away. Often they will leave them at the debtor’s house while a sale is arranged. 

The bailiff must leave a notice of seizure on the goods or on the land they were seized on. Seized property must be advertised for sale in a local newspaper and sold at public auction or by tender. 

The debtor can take the goods back by paying the bailiff the amount being claimed at any time before they are sold. 

However, the debtor must also pay the cost of:

  • seizing
  • advertising
  • arranging the sale. 

Sale of land 

A warrant may allow a bailiff to sell the debtor’s land. The bailiff must follow special procedures before they advertise land for sale.

If the debtor has little or no property

The warrant to seize property remains in force for 12 months. You can apply to the bailiff during this time to make another attempt to seize goods.

What a debtor can do

To prevent the bailiff from seizing property, the debtor must immediately seek an instalment order.

If they don’t owe the money or the amount is wrong, they can ask the bailiff to delay while they contact the creditor to check the facts. 

If the bailiff will not delay, they can apply to the court for a stay of enforcement.


Being paid from the debtor’s wages

If the debtor has a job, you can apply for payments to be taken from their wages.

This is called an attachment of earnings order. 

The court will decide the amount, making sure the debtor has enough money for living expenses. This is known as the protected earnings rate.


When the debtor is owed money

If the debtor cannot pay because they are owed money by someone else, the creditor can apply for a garnishee order.

This means the person who owes money to the debtor, known as a garnishee, pays the money directly to the creditor.

To get a garnishee order, you must apply to the registrar of the court where the judgment was made.