Part 8 Enforcement of judgments and orders
(cf Act No 9 1973, section 99; Act No 11 1970, section 49)
In this Part:chargee means the person to whom a charging order is addressed.
charging order means an order referred to in section 106 (1) (c).
financial institution means an authorised deposit-taking institution within the meaning of the Banking Act 1959 of the Commonwealth.
garnishee means the person to whom a garnishee order is addressed.
garnishee order means an order referred to in section 106 (1) (b).
goods means chattels, other than chattels real.
instalment order means an order referred to in section 107 (1).
order for examination means an order referred to in section 108 (1).
wage or salary includes:
(a) earnings that, although not payable under a contract of employment, are analogous to or in the nature of wage or salary, and(b) earnings of a share farmer or share worker.writ for the levy of property means a writ referred to in section 106 (1) (a).
writ of delivery means a writ referred to in section 105.
writ of execution means a writ of delivery, writ for the levy of property or writ of possession.
writ of possession means a writ referred to in section 104.
Note. Other words and expressions (for example, land and property) are defined in the Interpretation Act 1987.
103 Enforcement of judgments generally
Subject to this Part, the procedure for enforcing a judgment or order of the court is to be as prescribed by rules of court.
104 Judgments for possession of land
(1) A judgment for the possession of land may be enforced by a writ of possession.(2) Execution of a writ of possession does not require any goods to be removed from the land.
105 Judgments for delivery of goods
A judgment or order for the delivery of goods may be enforced by a writ of delivery.
106 Judgments for payment of money
(cf Act No 9 1973, section 109; Act No 8 1901, sections 4 and 5)
(1) A judgment debt may be enforced by means of any one or more of the following:(a) a writ for the levy of property,(b) a garnishee order,(c) in the case of a judgment of the Supreme Court or the District Court, a charging order.(2) Subject to the uniform rules, a writ for the levy of property is sufficient authority for the Sheriff:(a) to seize and to sell goods of or to which the judgment debtor is or may be possessed or entitled or which the judgment debtor may, at law or in equity, assign or dispose of, and(b) to seize money belonging to the judgment debtor, and(c) to seize and to realise cheques, bills of exchange, promissory notes, bonds, specialties or other securities for money belonging to the judgment debtor, and(d) to enter into possession of, and to sell, land of or to which the judgment debtor is seized or entitled, or which the judgment debtor may, at law or in equity, assign or dispose of, and(e) to take and to sell choses in action or equitable interests in goods or land held by the judgment debtor.(3) The power conferred on the Sheriff by subsection (2) (a) may not be exercised in relation to:(a) any clothing, or(b) any bedroom or kitchen furniture, or(c) any tools of trade (including vehicles, plant, equipment and reference books) not exceeding, in aggregate value, the sum prescribed by the uniform rules,if the clothing, furniture or tools are used by the judgment debtor or by any member of his or her family.(4) For the purposes of subsection (2) (d), the Sheriff is taken to have entered into possession of land when notice of the proposed sale of the land is published in accordance with the uniform rules.(5) The power conferred on the Sheriff by subsection (2) (d) may not be exercised in relation to land if the amount outstanding under the judgment is less than the jurisdictional limit of the Local Court when sitting in its Small Claims Division.(6) A garnishee order or charging order addressed to the Crown binds the Crown as garnishee or chargee, as the case requires.Note. Divisions 2, 3 and 4, respectively, apply to the enforcement of writs for the levy of property, garnishee orders and charging orders.
107 Deferred payment and payment by instalments
(1) A court in which judgment has been entered may, subject to and in accordance with the uniform rules, make an order allowing for:(a) payment of the judgment debt within such time as is specified in the order, or(b) payment of the judgment debt by instalments, payable in such amounts and at such times as are specified in the order.Note. Such an order may be varied or rescinded pursuant to section 43 (2) of the Interpretation Act 1987. The circumstances in which such an order may be varied or rescinded, and the procedure for varying or rescinding such an order, may be dealt with by the uniform rules.(2) Subject to section 119, execution of a judgment for the payment of money is stayed while the judgment is the subject of an order in force under this section.(3) (Repealed)
(cf Act No 9 1973, section 91; Act No 11 1970, section 41; SCR Part 43, rule 1)
(1) The court may, subject to and in accordance with the uniform rules, make an order requiring a person bound by a judgment or order:(a) to attend the court to be orally examined as to any material question, or(b) to produce any document or thing that is in his or her possession and that relates to a material question.(2) An order under this section with respect to a person that is a corporation:(a) may be addressed to any officer or former officer of the corporation, and(b) binds any such officer or former officer as if he or she were the person bound by the judgment or order.(3) Without limiting subsection (1), the uniform rules may require the judgment creditor under a judgment debt to have attempted to obtain information as to the judgment debtor’s financial circumstances (whether by means of a notice requiring the judgment debtor to supply such information or otherwise) before the judgment creditor may apply for an order under this section.(4) (Repealed)(5) For the purposes of this section, the material questions in relation to a judgment or order are:(a) to the extent to which it requires the person bound by it to pay money:(i) questions as to whether any and, if so, what debts are owing to that person, and(ii) questions as to whether that person has any and, if so, what other property or other means of satisfying the judgment or order, and(b) to the extent to which it does not require the person bound by it to pay money, such questions concerning or in aid of the enforcement or satisfaction of the judgment or order as may be specified in the order under this section.
Division 2 Writs for the levy of property
Subdivision 1 Enforcement against goods and securities
109 Effect of writ of execution on goods
(cf Act No 1 1923, section 29)
(1) A writ of execution against goods binds the property in the goods as from the time the writ is delivered to the Sheriff.(2) Despite subsection (1), a writ of execution does not affect the title to goods acquired by a person in good faith and for valuable consideration unless, when the person acquires title, he or she has notice that such a writ has been delivered to the Sheriff and remains unexecuted.
110 How goods subject to conditional bill of sale to be dealt with
(cf Act No 8 1901, section 16)
(1) If goods the subject of a writ for the levy of property (being goods in the possession of the judgment debtor) are the subject of a conditional bill of sale, the Sheriff may sell the judgment debtor’s interest in the goods without taking possession of them.(2) On receiving written notice of the purchase of the judgment debtor’s interest, the person having the benefit of the bill of sale (the holder of the bill) may take possession of the goods and, if he or she does so, is taken to hold them for the use of the purchaser, subject to the purchaser’s due payment of any amounts payable under the bill of sale.(3) If the goods are subsequently sold under the bill of sale, and there is any surplus remaining from the proceeds of sale after the debt to the holder of the bill is satisfied, the holder must pay the surplus to the purchaser, and, accordingly, the amount of that surplus is recoverable by the purchaser from the holder as a debt.(4) Nothing in this section affects the right of any judgment creditor to test the validity of any bill of sale by interpleader.
111 How securities to be dealt with
(cf Act No 8 1901, sections 6, 7 and 8)
(1) The Sheriff may hold any cheque, bill of exchange, promissory note, bond, specialty or other security for money as a security for the amount outstanding under the judgment and, if payment thereof has become due, may sue in the name of the Sheriff for the recovery of the sum secured thereby.(2) The payment to the Sheriff by the person liable on any such security for money, or the recovery by the Sheriff against the person so liable, discharges the person from that liability to the extent of the payment or recovery.
Subdivision 2 Enforcement against land
112 Effect of judgment and writ of execution on land
(cf Act No 8 1901, section 13)
(1) A writ of execution against land binds the land, as from the time the writ is delivered to the Sheriff, in the same way as a writ of execution against goods binds the property in the goods.(2) Despite subsection (1), a writ of execution does not affect the title to land acquired by a person in good faith and for valuable consideration unless, when the person acquires title, he or she has notice that such a writ has been delivered to the Sheriff and remains unexecuted.(3) A judgment in any action at law does not of itself bind or affect any land.
113 Sale or mortgage by judgment debtor of land affected by order
(cf Act No 52 1970, section 98A; Act No 9 1973, section 112; Act No 11 1970, section 62A)
(1) This section applies to land the subject of a writ for the levy of property:(a) that is registered, in the Register kept under the Real Property Act 1900, pursuant to section 105 of that Act, or(b) that is registered, in the General Register of Deeds kept under the Conveyancing Act 1919, pursuant to section 186 of that Act.(2) During the period:(a) that begins when the writ is registered in the relevant register, and(b) that ends at the expiration of 6 months after the writ is registered in the relevant register, or on the expiration of the writ, whichever first occurs,land the subject of the writ may not be sold or mortgaged by the judgment debtor otherwise than in accordance with this section.(3) Before the land may be sold or mortgaged by the judgment debtor:(a) the judgment creditor:(i) must consent, by notice in writing, to the sale or mortgage of the land by the judgment debtor, and(ii) must stipulate, in the notice of consent, the minimum amount to be paid to the Sheriff from the proceeds of the sale of the land or from the money advanced under the mortgage of the land, and(b) the judgment debtor must lodge the notice of consent with the Sheriff, and(c) the Sheriff, after due inquiry, must endorse the notice of consent with a certificate to the effect that the land has not been sold under the writ.(4) During the period of 8 weeks commencing on the date on which the Sheriff endorses the notice of consent, as referred to in subsection (3) (c):(a) the judgment debtor may enter into an agreement for the sale or mortgage of the land, and(b) the Sheriff is prohibited from causing the land to be sold.(5) Any deposit paid under an agreement for the sale of the land is to be paid to the Sheriff, to be held by the Sheriff as stakeholder.(6) On payment to the Sheriff, from the proceeds of the sale of the land or from the money advanced under the mortgage of the land, of an amount that (together with any such deposit) is at least as much as the minimum amount referred to in subsection (3) (a) (ii):(a) any liability of the purchaser or mortgagee for payment to the judgment debtor from those proceeds or that advance is extinguished, to the extent of the amount paid to the Sheriff, and(b) the Sheriff, on production of the agreement for the sale or the mortgage instrument, must endorse:(i) in the case of a sale, the agreement for sale, or(ii) in the case of a mortgage, the mortgage instrument.(7) The purchaser’s or mortgagee’s interest in the land, as evidenced by the agreement or mortgage instrument so endorsed, is not affected by anything done under the writ, whether before or after the endorsement of the consent.(8) The amount paid to the Sheriff, as referred to in subsection (6), is to be paid:(a) firstly, towards the Sheriff’s costs in connection with the execution of the writ, and(b) secondly, in reduction of the judgment debt, and(c) thirdly, if the amount exceeds the amounts required to satisfy the Sheriff’s costs and the judgment debt, to the judgment debtor.(9) In this section, notice of consent means a notice referred to in subsection (3) (a) (i).
114 Entry onto land for purposes of sale by auction
(cf Act No 8 1901, section 17A)
(1) The court may, in relation to land to be sold by public auction under a writ of execution, make orders:(a) authorising entry onto the land by the Sheriff (including entry by force if necessary) for the purpose of showing the land to prospective purchasers, and(b) authorising entry onto the land by prospective purchasers in the presence of the Sheriff.(2) For those purposes, such an order may also authorise the Sheriff to do either or both of the following:(a) to secure entry onto the land (including by breaking or replacing locks, bars and other devices restricting entry, if necessary),(b) to take such steps as are necessary to prevent persons from entering the land.(3) This section does not affect any other power of the court to make orders in relation to such matters.(4) A reference in this section to land includes any premises on land.
115 Effect of sale of property
(cf Act No 8 1901, section 12)
(1) A sale of property by the Sheriff under this Part is as valid and effectual as if the property had been sold to the purchaser by the judgment debtor personally.(2) Subsection (1) does not apply to the sale of an equity of redemption or other equitable interest relating to land unless a deed of bargain and sale to the purchaser is duly executed by the Sheriff.(3) In a deed of conveyance executed by the Sheriff in relation to any land, a statement to the effect that:(a) the land has been sold under a writ for the levy of property, and(b) the writ for the levy of property has been issued pursuant to a judgment of a court in relation to proceedings specified in the writ,is admissible in any proceedings as evidence of those facts.
Subject to section 135:(a) the expiry of a writ for the levy of property does not affect any agreement for sale or other transaction entered into under the authority of the writ before that expiry, and(b) any action necessary to complete that sale or give effect to that transaction may be taken as if the writ were still in force.
Subdivision 1 Enforcement against debts
117 Operation of garnishee order in relation to debts
(cf Act No 9 1973, section 97)
(1) Subject to the uniform rules, a garnishee order operates to attach, to the extent of the amount outstanding under the judgment, all debts that are due or accruing from the garnishee to the judgment debtor at the time of service of the order.(2) For the purposes of this Division, any amount standing to the credit of the judgment debtor in a financial institution is taken to be a debt owed to the judgment debtor by that institution.
118 Time within which payment to be made
(cf Act No 9 1973, section 97B; Act No 11 1970, section 47B)
Payment of an amount with respect to a debt attached by a garnishee order must be made:(a) within 14 days after the date on which the order is served on the garnishee, or(b) if the order attaches a debt that falls due after that date, within 14 days after the date on which the debt falls due.
Subdivision 2 Enforcement against income
119 Operation of garnishee order in relation to income
(cf Act No 9 1973, section 97)
(1) Subject to sections 121 and 122 and the uniform rules, a garnishee order operates to attach, to the extent of the amount outstanding under the judgment:(a) any wage or salary that, while the order is in force, is payable to the judgment debtor by the garnishee, or(b) if the judgment debt becomes the subject of an instalment order, such amounts from the wage or salary payable to the judgment debtor by the garnishee as are equivalent to the instalments payable under the instalment order.(2) An instalment order with respect to a judgment debt the subject of a garnishee order takes effect in relation to the amounts payable under the garnishee order as from the time the instalment order is served on the garnishee.(3) A garnishee order ceases to have effect, in relation to the wage or salary payable to a judgment debtor, when the judgment debt is satisfied.(4) An order under this section addressed to the Crown as garnishee binds the Crown.
120 Time within which payment to be made
(cf Act No 9 1973, section 97B; Act No 11 1970, section 47B)
Payment of an amount with respect to a wage or salary attached by a garnishee order must be made within 14 days after the date on which the wage or salary falls due.
121 Maximum payment under one of several concurrent garnishee orders
(cf Act No 9 1973, section 101; Act No 11 1970, section 51)
(1) This section applies in circumstances in which a wage or salary is attached by one or more garnishee orders of which one or more (but not all) are limited garnishee orders.(2) Unless the court orders otherwise, the amount payable by a garnishee under a garnishee order that is not a limited garnishee order must not, in respect of any wage or salary attached by the garnishee order, exceed the greatest amount payable by the garnishee under any limited garnishee order that attaches the same wage or salary.(3) In this section, limited garnishee order means a garnishee order in respect of a judgment debt that is the subject of an instalment order.
122 Maximum total payment under all garnishee orders
(Act No 9 1973, section 99; Act No 11 1970, section 49)
(1) The amounts attached under one or more garnishee orders must not, in total, reduce the net weekly amount of any wage or salary received by the judgment debtor from the garnishee to less than the standard workers compensation weekly benefit.(2) In this section:net weekly amount, in relation to any wage or salary payable to a judgment debtor, means the amount payable each week to the judgment debtor after deducting any taxes or other sums that, pursuant to any Act (including any Commonwealth Act), are required to be deducted from any such money.
standard workers compensation weekly benefit means an amount equivalent to the weekly payment of compensation referred to in section 37 (1) (a) (i) of the Workers Compensation Act 1987, as adjusted under Division 6 of Part 3 of that Act.
(cf Act No 9 1973, section 105; DCR Part 33, rule 7; Act No 11 1970, section 47D; LCR Part 29, rule 3)
(1) A payment under a garnishee order must be made in accordance with, and to the judgment creditor specified in, the order.(2) Out of each amount attached under the garnishee order, the garnishee:(a) subject to payment of the balance being made within the time required by section 118 or 120, as the case may be, may retain up to the amount prescribed by the uniform rules to cover the garnishee’s expenses in complying with the garnishee order, and(b) must pay the balance to the judgment creditor.(3) A payment to the judgment creditor must be accompanied by a statement showing:(a) the amount attached under the garnishee order, and(b) how much of that amount has been retained by the garnishee, and(c) how much of that amount has been paid to the judgment creditor.(4) As between the garnishee and the judgment debtor, the amount attached under the garnishee order is taken, subject to any order of the court, to have been paid by the garnishee to the judgment debtor.Note. Such an order may be made, for example, if the garnishee has failed to comply with the requirements of subsection (3).(5) As between the judgment creditor and the judgment debtor, the amount of the payment to the judgment creditor is taken to have been paid by the judgment debtor to the judgment creditor in satisfaction, to the extent of that amount, of the judgment.
124 Procedure where garnishee order not complied with
(cf Act No 9 1973, section 102; Act No 11 1970, section 52)
(1) On the application of a judgment creditor who considers that a garnishee order has not been complied with, the court:(a) may hear and determine any question as to the liability of the garnishee to pay the debt, wage or salary sought to be attached by the garnishee order, and(b) if satisfied that the garnishee is so liable, may give judgment in favour of the judgment creditor against the garnishee:(i) for the amount of that debt, wage or salary, or(ii) for the unpaid amount of the judgment debt,whichever is the lesser.(2) The court may refuse to give such a judgment if it is of the opinion that such a judgment should not be given.(3) Without limiting subsection (2), the reasons that may lead the court to form such an opinion may include:(a) the smallness of the amount outstanding under the judgment, and(b) the smallness of the debt, wage or salary to be attached.(4) As between the garnishee and the judgment debtor, an amount paid to the judgment creditor by the garnishee under a judgment given under this section is taken to have been paid to the judgment debtor.
125 Repayment of excess amounts
(cf Act No 9 1973, section 106; Act No 11 1970, section 56)
(1) If a judgment creditor receives an amount paid under a garnishee order in excess of the amount required to satisfy the judgment, the judgment creditor:(a) must forthwith notify the judgment debtor and the garnishee of that fact, and(b) on demand made by the judgment debtor, must repay the excess to the judgment debtor.(2) The amount of the excess is recoverable from the judgment creditor, by the judgment debtor or by the garnishee, as a debt in any court of competent jurisdiction.
126 Operation of charging order in relation to specified security interests
(cf Act No 8 1901, section 27)
(1) This section applies to the following kinds of property in relation to a judgment debtor (referred to in this Division as security interests):(a) stock and shares in a public company,(b) money on deposit in a financial institution, being:(i) money held in the judgment debtor’s name in the judgment debtor’s own right, or(ii) money held in the name of some other person in trust for the judgment debtor,(c) any equitable interest in property.(2) Subject to the uniform rules, a charging order operates, in relation to each security interest specified in the order:(a) to charge the security interest in favour of the judgment creditor to the extent necessary to satisfy the judgment, and(b) to restrain the chargee from dealing with the security interest otherwise than in accordance with the directions of the judgment creditor.(3) A charging order takes effect when it is made.(4) Despite subsection (3), the judgment creditor may not commence proceedings to take the benefit of a charge arising under a charging order until after the expiration of 3 months from the date of the order.(5) A charging order entitles the judgment creditor, in relation to the security interests charged by the order, to any relief to which the judgment creditor would have been entitled had the charge been made in the judgment creditor’s favour by the judgment debtor.
127 Unauthorised transfer or disposal of security interest under charging order
(cf Act No 8 1901, section 29)
(1) A chargee or other person who, having notice of a charging order, deals with any security interest charged by the order otherwise than in accordance with the directions of the judgment creditor is liable to the judgment creditor for such amount (not exceeding the value of the security interest) as may be necessary to satisfy the judgment.(2) This section does not prevent the court from granting the judgment creditor, as a consequence of the chargee or other person having dealt with the security interest, any relief that is available apart from this section.
128 Disposal of security interest by judgment debtor invalid
(cf Act No 8 1901, section 30)
While a charging order is in force, any purported transfer or disposal by the judgment debtor of a security interest charged by the order, being a transfer or disposal effected otherwise than in accordance with the directions of the judgment creditor, is of no effect as against the judgment creditor.
129 No arrest on mesne process
(cf Act No 52 1970, section 10)
(1) No person is to be arrested on mesne process issued by the court.(2) This section does not affect any power of arrest exercisable pursuant to an arrest warrant issued under this or any other Act.
130 Judgments not enforceable by certain means
(cf Act No 52 1970, section 98)
A judgment or order is not enforceable against a person:(a) by any process for attachment of the person, or(b) by any process for committal of the person, or(c) by any writ of capias ad satisfaciendum.
Nothing in this Act or the uniform rules limits or otherwise affects the power of the court to attach or commit a person for contempt.
132 Sheriff may appoint custodian for goods
(cf Act No 9 1973, section 109 (9))
(1) After seizing a judgment debtor’s goods pursuant to a writ of delivery or writ for the levy of property, the Sheriff, by notice in writing served on:(a) the judgment debtor, or(b) any other person who has the custody of the goods,may appoint the judgment debtor or other person as custodian of the goods pending their delivery or sale under the writ.(2) A custodian so appointed, and any other person aware that a custodian is so appointed, must not:(a) sell, give or otherwise deal with the goods, or(b) damage or destroy the goods, or(c) hide or remove the goods, or(d) cause, permit or allow the goods to be sold, given or otherwise dealt with, damaged or destroyed or hidden or removed,otherwise than with the leave of the court or the written consent of the Sheriff.Maximum penalty: 50 penalty units.
(3) Prosecution of a person for an offence under subsection (2) does not prevent any other proceedings from being taken against the person in respect of an alleged failure to comply with a duty arising from the person’s appointment as a custodian of goods.
133 Judgments and orders unenforceable until entered
(1) A judgment or order of the court may not be enforced until it has been entered in accordance with the uniform rules.(2) This section extends to:(a) any judgment, order, determination or decree of a court, and(b) any adjudication or award of a person having authority to make an adjudication or award,that may be filed or registered in the court, or of which a certificate may be filed or registered in the court, under any other Act or law.(3) In subsection (2), law includes:(a) a law of the Commonwealth, and(b) a law of another State or Territory, and(c) in relation to the Supreme Court, a law of a foreign country.
134 Stale judgments and orders enforceable only by leave
(cf Act No 9 1973, section 84A)
(1) An application by a judgment creditor for:(a) a writ of execution, or(b) a garnishee order, or(c) a charging order, or(d) an order for examination,may not be made, except by leave of the court, if the prescribed period has elapsed since the judgment was given or (in the case of a judgment, order or decree referred to in section 133 (2)) was registered as referred to in section 133 (2).(2) In this section, prescribed period means 12 years or, if the uniform rules prescribe a different period, the period so prescribed.
135 Directions as to enforcement
(1) The court may, by order, give directions with respect to the enforcement of its judgments and orders.(2) Without limiting subsection (1), the court may make any of the following orders:(a) an order authorising the Sheriff to enter premises for the purpose of taking possession of goods under a writ of execution,(b) an order prohibiting the Sheriff from taking any further action on a writ,(c) an order prohibiting any other person from taking any further action, either permanently or until a specified day, to enforce a judgment or order of the court,(d) an order requiring the Registrar-General to cancel any recording of a writ for the levy of property that, under section 105 of the Real Property Act 1900, has been made in the Register under that Act, either generally or in relation to specified land.
136 Appropriation of payments towards judgment debt
Unless the court otherwise orders, any payment made on account of a judgment debt is to be appropriated:(a) firstly, towards such part of the judgment debt as comprises interest payable under section 101, and(b) secondly, towards the balance of the judgment debt.
137 Execution of judgments and orders for costs
(1) A judgment may be enforced in relation to costs separately from its enforcement in relation to matters other than costs.(2) Unless the court otherwise orders, the costs recoverable under a writ of execution, garnishee order or charging order include:(a) costs in relation to any prior writ of execution, garnishee order or charging order in relation to the same judgment, whether or not the prior writ or order was productive, and(b) money recoverable under section 107 (1) of the Service and Execution of Process Act 1992 of the Commonwealth.
138 Other methods of enforcing judgments
(1) Nothing in this Part limits the manner in which a judgment or order of the court may be enforced apart from this Act.(2) Without limiting subsection (1), nothing in this Part prevents the court:(a) from issuing consecutive writs for the levy of property against the same judgment debtor, or making consecutive garnishee orders or consecutive charging orders in respect of the same judgment debtor, in respect of the same judgment debt, or(b) from making concurrent garnishee orders against different garnishees, or consecutive garnishee orders against the same garnishee, in respect of the same judgment debt.