To obtain a Judgment in the Magistrates Court for money you are owed, you need to file a Complaint setting out the claim as well as some other required forms. Once this is done, if the Defendant fails to file a defence to the claim once served with the Documents, or does file a defence and at a contested hearing a Magistrate makes an Order in your favour, you can obtain a Judgement Order (“Order”) against the Defendant.
Once you have the Order, you need to assess the best way to recover the money owed if the Defendant is still not making payment despite the Order. There are a number of options available.
- Instalment Orders
A person who has an Order made against them can apply for an Instalment Order which if granted allows the debtor to pay the amount by instalments or fixed amounts.
It should be noted that if an Instalment Order is granted, a judgment creditor can file a notice of objection if they are not satisfied with the Order and believe that the debtor could pay more. If this occurs, the matter will be put before a Magistrate who will decide if the Instalment Order should remain in place or be amended or revoked.
- Warrant To Seize Property
If you believe that the debtor has goods or belongings, you can apply to the Magistrates Court for a warrant which would allow Sheriff Officers to seize and sell those belongings to pay the debt.
There are limits to what property a Sheriff can seize so it would be wise to consult a solicitor if you are considering this option.
- Warrant of Seizure and Sale
If a creditor knows that the debtor owns land or real estate, the creditor can apply to the Supreme Court of Victoria or the County Court for an Order that the land or real estate be sold to pay the debt.
- Attachment of Earnings
If the debtor is employed, a creditor can apply to the Court for an Order that the employer pays a portion of the salary/income directly to the creditor. There is a limit to how much an employer can be ordered to pay and 80% of the earnings of the debtor will be protected, but the remaining 20% can be ordered to be paid directly to the creditor.
- Attachment of Debt
If the creditor knows that a judgment debtor is owed money by a third party, an application can be made to the Magistrates Court allowing that third party to pay the debt amount to you directly.
- Summons for Oral Examination
If a creditor does not believe they know enough about the debtor’s financial position to make an appropriate decision in relation to the above options, there is a process which allows the creditor to summons the debtor to court to be examined on their assets, income and liabilities so they are aware of the debtor’s financial situation and can determine the best enforcement option.
If you have any questions about the above information or you would like assistance, please contact Annette Stone at annette@ballaratlawyers.net.au or on 5303 0283 or Wendy Chennell at wendy@ballaratlawyers.net.au or on 5303 0285.
The information on this website is of a general nature only. It is not, nor is it intended to be, legal advice. You should consult a lawyer for individual advice about your particular circumstances.
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