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Western Australia
Civil Judgments Enforcement Bill 2003
CONTENTS
Part 1 -- Preliminary
1. Short title 2
2. Commencement 2
3. Interpretation 2
4. "Earnings", definition of 5
5. Judgments to which this Act applies 6
6. Crown bound 7
7. Common law writs etc. and rules, application of 7
Part 2 -- Interest on judgment sums
8. Interest on judgment sums 8
Part 3 -- Provisions applying to all
judgments
Division 1 -- Procedural matters
9. Applying to a court under this Act 9
10. Costs of proceedings under this Act 10
Division 2 -- General
11. When judgments have effect 10
12. Limitation period for enforcement 10
13. Court's leave to enforce needed in some cases 11
14. Partnerships, enforcement against 12
Division 3 -- Suspending the enforcement of
judgments
15. Suspension order 13
16. Suspension order, effect of 14
Part 4 -- Enforcing monetary
judgments
256--2 page i
Civil Judgments Enforcement Bill 2003
Contents
Division 1 -- General
17. Interpretation 15
18. Enforcement orders, applicability of 15
19. Enforcement orders, application for etc. 15
20. Enforcement and other orders, making of 16
21. Certain orders only available at or after means inquiry 16
22. More than one enforcement order, applications for 16
23. Multiple enforcement orders, effect of 17
24. Money recovered, judgment creditor's duties as to 18
25. Excess money recovered, consequences 18
Division 2 -- Means inquiry
26. Means inquiry, nature of 19
27. Means inquiry, application for by judgment creditor 19
28. Means inquiry, application for by judgment debtor 20
29. Means inquiry, summons to attend 21
30. Means inquiry, conduct of 21
31. Orders at or after a means inquiry 22
Division 3 -- Orders for payment
32. Time for payment order 23
33. Instalment order 23
Division 4 -- Appropriating a judgment debtor's
earnings
34. Interpretation 24
35. Earnings appropriation order 24
36. Earnings appropriation order, content and service of 25
37. Earnings appropriation order, effect of 25
38. Third person's obligations 26
39. Third person entitled to expenses of obeying order 26
40. Third person may object to appropriation order 27
41. Objection to appropriation order, consequences of 27
42. Earnings appropriation order, failure to obey 28
43. Earnings appropriation order, effect of obeying 29
44. Employees, protection of 29
Division 5 -- Appropriating debts owed to a
judgment debtor
45. Interpretation 30
46. "Available debt", definition of 31
47. Workmen's Wages Act 1898, application of 31
48. Available debts, provisions about 31
page ii
Civil Judgments Enforcement Bill 2003
Contents
49. Debt appropriation order 32
50. Debt appropriation order, content and service of 32
51. Debt appropriation order, effect of 33
52. Third person's obligations 35
53. Third person entitled to expenses of obeying order 36
54. Third person may object to appropriation order 36
55. Objection to appropriation order, consequences of 37
56. Debt appropriation order, failure to obey 38
57. Debt appropriation order, effect of obeying 39
58. Money in court due to a judgment debtor,
appropriation of 39
Division 6 -- Seizing and selling a judgment
debtor's property
Subdivision 1 -- General
59. Property (seizure and sale) order 40
60. Property (seizure and sale) order, content and service
of 40
61. Receipt of order to be recorded by Sheriff 40
62. Property (seizure and sale) order, duration of 40
63. Determining a judgment debtor's interest in property 41
64. Personal property to be sold in preference to real
property 42
65. Only sufficient property to be sold 43
66. Seized property, Sheriff to determine fair value of 43
67. Interests of others 43
68. Sale to be advertised 44
69. Place and manner of sale 44
70. Transfers of property sold, Sheriff may sign 45
71. Purchasers of property sold, protection of 45
72. Proceeds of sale, how to be applied 46
73. Priority of orders, establishing 48
Subdivision 2 -- Seizing and selling personal
property
74. Property (seizure and sale) order, effect of 49
75. Seizing personal property, powers enabling 50
76. Property that cannot be seized and sold 51
77. Seizure notice to be issued 52
78. Custody of seized property 52
79. Cheques etc., consequences of seizing 53
page iii
Civil Judgments Enforcement Bill 2003
Contents
Subdivision 3 -- Seizing and selling real property
80. Property (seizure and sale) order, effect of 53
81. Power of entry 55
82. Judgment debtor may be permitted to sell or mortgage
real property 56
Subdivision 4 -- Interpleader
83. Making a claim to property 58
84. Judgment creditor may admit or dispute claim 58
Division 7 -- Receivers and special remedies
85. Interpretation 59
86. Appointing a receiver, injunctions etc. 59
87. Receiver, appointment of etc. 60
Division 8 -- Disobeying time for payment orders
and instalment orders
88. Summons to default inquiry, request for 61
89. Default inquiry, summons to attend 62
90. Default inquiry, nature of 63
91. Imprisonment for default, judgment creditor's duties 65
92. Imprisonment for default, release from 66
Division 9 -- Miscellaneous
93. Judgments against objects 67
Part 5 -- Enforcing non-monetary
judgments
Division 1 -- Judgments requiring property to be
given up
94. Application of this Division 68
95. Property (seizure and delivery) order 68
96. Property (seizure and delivery) order, effect of 69
Division 2 -- Other non-monetary judgments
97. Application of this Division 70
98. Disobeying judgment is a contempt of court 70
99. Court may order act to be done at expense of
obligated person 71
Part 6 -- Miscellaneous enforcement
provisions
100. Personal property on land, powers to deal with 72
page iv
Civil Judgments Enforcement Bill 2003
Contents
101. Signing of documents, court may order 72
102. Duration and renewal of orders and warrants 73
103. Amending and cancelling orders etc. 73
104. Directions, court may give 74
105. Irregular enforcement, courts' powers as to 75
Part 7 -- Administrative matters
Division 1 -- Officers
106. Interpretation 76
107. Bailiffs, appointment of 76
108. Assistant bailiffs, appointment of 77
109. Sheriff may delegate to bailiffs 77
110. Bailiffs' functions 78
111. Protection from liability 79
Division 2 -- Provisions about the Sheriff
112. Sheriff unable to act, court's powers 79
113. Sheriff exempt from some fees 80
114. Sheriff entitled to access to some official records 80
115. Sheriff exempt from some licensing requirements 80
Part 8 -- Miscellaneous
116. Protection of person acting under sealed court order 81
117. Sheriff and bailiffs to carry out orders 81
118. Impersonating an officer, offence of 81
119. Regulations 81
120. Fees, regulations may prescribe 82
121. Rules of court 83
Schedule 1 -- Provisions about
available debts 84
1. Financial institution accounts in name of judgment
debtor 84
2. Debts owed to judgment debtor and others jointly 85
3. Available debts, court may exempt certain portions 85
4. Debts payable on conditions 86
Defined Terms
page v
Western Australia
LEGISLATIVE ASSEMBLY
Civil Judgments Enforcement Bill 2003
A Bill for
An Act to provide for the enforcement of judgments given in the civil
jurisdiction of courts and for related matters.
The Parliament of Western Australia enacts as follows:
page 1
Civil Judgments Enforcement Bill 2003
Part 1 Preliminary
s. 1
Part 1 -- Preliminary
1. Short title
This Act may be cited as the Civil Judgments Enforcement
Act 2003.
5 2. Commencement
This Act comes into operation on a day fixed by proclamation.
3. Interpretation
In this Act, unless the contrary intention appears --
"assistant bailiff" means a person who holds an appointment
10 under section 108 as an assistant bailiff;
"available debt" has the meaning given by section 46;
"bailiff" means a person who holds an appointment under
section 107 as a bailiff;
"corporation" has the meaning given by section 57A of the
15 Corporations Act 2001 of the Commonwealth;
"court" has a meaning affected by sections 5 and 9;
"debt appropriation order" means an order made under
section 49(2);
"default inquiry" means an inquiry held under Part 4
20 Division 8;
"Deputy Sheriff" means a deputy appointed by the Sheriff
under the Supreme Court Act 1935 section 158;
"dwelling" means --
(a) a building, structure or tent, or a part of a building
25 structure or tent, that is ordinarily used for human
habitation; or
(b) a mobile home,
and it does not matter that it is uninhabited from time to
time;
page 2
Civil Judgments Enforcement Bill 2003
Preliminary Part 1
s. 3
"earnings" has the meaning given by section 4;
"earnings appropriation order" means an order made under
section 35(2);
"enforcement costs", of a judgment, means --
5 (a) any fees, expenses, or other amounts, that are paid,
ordered to be paid, or payable, under this Act or
another written law in connection with enforcing the
judgment; and
(b) any costs of taking, or in relation to, any proceedings
10 under this Act to enforce the judgment that are
ordered by a court to be paid by the person against
whom the judgment is given;
"enforcement officer" means the Sheriff, a Deputy Sheriff, a
bailiff, an assistant bailiff, or a person appointed under
15 section 112;
"instalment order" means an order made under section 33(2);
"interpleader proceedings" means proceedings held under
Part 4 Division 4;
"judgment" means --
20 (a) a monetary judgment; or
(b) a judgment or an order of a court that requires or has
the effect of requiring a person --
(i) to give possession of any property to another
person; or
25 (ii) to do an act, to not do an act, or to cease doing
an act;
"judgment creditor" means a person who is entitled to the
benefit of a monetary judgment, including a person to
whom the benefit of a monetary judgment has passed (by
30 assignment or any other way);
"judgment debt" means the unpaid amount of any of the
following --
(a) a judgment sum;
page 3
Civil Judgments Enforcement Bill 2003
Part 1 Preliminary
s. 3
(b) interest on the judgment sum;
(c) enforcement costs of the judgment;
"judgment debtor" means any person against whom a
monetary judgment has been given or may be enforced;
5 "judgment sum" means the amount of money ordered to be
paid under a monetary judgment, whether or not the money
is or includes costs or pre-judgment interest;
"means inquiry" means an inquiry held under Part 4
Division 2;
10 "mobile home" means a vehicle --
(a) that is ordinarily used for human habitation; and
(b) that is permanently or semi-permanently stationary in
a single location;
"monetary judgment" means a judgment or an order of a court
15 that requires or has the effect of requiring a person to pay
money, whether or not the judgment or order contains any
other requirements;
"officer", of a corporation, has the meaning given by section 9
of the Corporations Act 2001 of the Commonwealth;
20 "partnership" means a partnership within the meaning of The
Partnership Act 1895 or an unincorporated company or
association formed for the purposes of gain;
"personal property" does not include any estate or interest in
land;
25 "place" means any land, building, structure, tent or vehicle, or
any part of any land, building, structure, tent or vehicle;
"property (seizure and delivery) order" means an order made
under section 95(2);
"property (seizure and sale) order" means an order made
30 under section 59(2);
"real property" includes a leasehold and any other estate or
interest in land;
page 4
Civil Judgments Enforcement Bill 2003
Preliminary Part 1
s. 4
"record" means any thing or process --
(a) upon or by which information is recorded or stored;
or
(b) by means of which a meaning can be conveyed by
5 any means in a visible or recoverable form,
whether or not the use or assistance of some electronic,
electrical, mechanical, chemical or other device or process
is required to recover or convey the information or
meaning;
10 "saleable interest", in real or personal property, has the
meaning given by section 74(1) or 80(1), as the case
requires;
"Sheriff" means the Sheriff referred to in the Supreme Court
Act 1935 section 156;
15 "suspension order" means an order made under section 15(3);
"time for payment order" means an order made under
section 32(2);
"vehicle" means any thing capable of transporting people or
things by road, rail or water, including a hovercraft, and it
20 does not matter how the thing is moved or propelled.
4. "Earnings", definition of
In this Act "earnings", of a natural person, means money that is
or will be payable to the person for or in relation to services
provided by the person by way of --
25 (a) wages, salary, commissions, fees, bonuses, overtime
pay, leave loadings, payments in lieu of leave, or
otherwise;
(b) an annuity or pension for or in relation to past services,
whether or not the services were provided to the person
30 paying the annuity;
page 5
Civil Judgments Enforcement Bill 2003
Part 1 Preliminary
s. 5
(c) periodical payments of compensation for --
(i) the loss, abolition or relinquishment of, or any
reduction in the remuneration of, any office or
employment; or
5 (ii) the loss of the money referred to in paragraph (a)
because of illness or injury, whether at work or
not,
but does not include the following --
(d) money payable to the person under a child maintenance
10 order made under the Family Court Act 1997;
(e) money payable to the person under a child maintenance
order made under the Family Law Act 1975 of the
Commonwealth;
(f) money payable to the person under the Child Support
15 (Registration and Collection) Act 1988 of the
Commonwealth;
(g) money payable to the person under the Child Support
Assessment Act 1988 of the Commonwealth;
(h) a pension, benefit or allowance payable to the person
20 under --
(i) the Social Security Act 1991 of the
Commonwealth; or
(ii) the Veterans' Entitlements Act 1986 of the
Commonwealth;
25 (i) money payable to the person that is prescribed not to be
earnings for the purposes of this Act.
5. Judgments to which this Act applies
This Act applies to and in respect of any judgment given by any
of the following courts in the exercise of its civil jurisdiction --
30 (a) the Supreme Court;
(b) the District Court;
page 6
Civil Judgments Enforcement Bill 2003
Preliminary Part 1
s. 6
(c) the Magistrates Court.
6. Crown bound
This Act binds the Crown.
7. Common law writs etc. and rules, application of
5 (1) The writs, warrants and orders that, immediately before the
commencement of this Act, could be issued or made at common
law or in equity or under a written law --
(a) to enforce or execute a judgment of a court; or
(b) in aid of a writ, warrant or order to enforce or execute a
10 judgment of a court,
are abolished.
(2) The rules at common law or in equity applicable to or in relation
to a writ, warrant or order that is abolished by subsection (1)
and that is substantially similar to an order that may be made
15 under this Act, apply to or in relation to the order that may be
made under this Act so far as they are consistent with this Act.
page 7
Civil Judgments Enforcement Bill 2003
Part 2 Interest on judgment sums
s. 8
Part 2 -- Interest on judgment sums
8. Interest on judgment sums
(1) Interest is to be paid on the unpaid amount of a judgment sum
from the date of the judgment until the date on which the
5 judgment sum is paid --
(a) at the rate prescribed by the regulations; or
(b) at the rate set by the court in the judgment or by an order
made after the judgment is given.
(2) Subsection (1) applies whether or not --
10 (a) a suspension order has been made; or
(b) a time for payment order or an instalment order has been
made,
unless the court that made such an order orders otherwise.
(3) The judgment creditor may waive the payment of the whole or a
15 part of the interest referred to in subsection (1).
(4) A judgment creditor who waives interest under subsection (3)
must advise the court of the fact when applying for an
enforcement order under Part 4.
(5) Subsection (1) does not apply to --
20 (a) a judgment that is registered under section 105(1) of the
Service and Execution of Process Act 1992 of the
Commonwealth; or
(b) a judgment sum on which interest is payable under
another written law.
page 8
Civil Judgments Enforcement Bill 2003
Provisions applying to all judgments Part 3
Procedural matters Division 1
s. 9
Part 3 -- Provisions applying to all judgments
Division 1 -- Procedural matters
9. Applying to a court under this Act
(1) An application or request that may be made under this Act to a
5 court in relation to a judgment must be made --
(a) to the court that gave the judgment; and
(b) at the registry of that court where the documents relating
to the action or matter in which the judgment was given
are being held, unless the court gives permission for the
10 application or request to be made at another registry.
(2) An application or request that may be made under this Act must
be made in accordance with the regulations.
(3) Rules of court made by a court referred to in section 5 may
prescribe applications and requests that, when made to the court
15 under this Act, may be dealt with by an officer of that court,
other than an officer who may constitute the court, who is
prescribed by the rules for that purpose.
(4) A person who is dissatisfied by a decision of an officer of a
court, who is prescribed under subsection (3), made on an
20 application or request dealt with by the officer may apply to the
court for a review of the decision.
(5) The application under subsection (4) must be made --
(a) in accordance with rules of court made by the court; and
(b) within 21 days after the date of the officer's decision.
25 (6) The court may extend the 21 day period and may do so even if it
has expired.
(7) The review is to be by way of a new hearing of the issue that
was before the officer.
page 9
Civil Judgments Enforcement Bill 2003
Part 3 Provisions applying to all judgments
Division 2 General
s. 10
(8) On the review the court may confirm the officer's decision or
set it aside and make any decision that the officer could have
made, and may do so on terms as to costs or otherwise.
10. Costs of proceedings under this Act
5 The court in which proceedings under this Act are taken in
relation to a judgment may make any order as to and incidental
to the costs of taking, or the costs in relation to, the proceedings
that it could make as to and incidental to costs in civil
proceedings before the court.
10 Division 2 -- General
11. When judgments have effect
(1) A judgment has effect --
(a) at the time it is given; or
(b) if it provides, or the court giving it orders, that it has
15 effect from an earlier or later time, at that time.
(2) Subject to sections 12 and 13, an application for an order under
this Act to enforce a judgment may be made at any time after it
has effect.
(3) The commencement of an appeal against a judgment does not
20 affect subsection (1).
(4) This section does not limit the operation of Division 3.
12. Limitation period for enforcement
An order under this Act to enforce a judgment that takes effect
after the commencement of this Act must not be made if
25 12 years have elapsed since the judgment took effect.
page 10
Civil Judgments Enforcement Bill 2003
Provisions applying to all judgments Part 3
General Division 2
s. 13
13. Court's leave to enforce needed in some cases
(1) Leave of the court must be obtained before an order may be
made under this Act to enforce a judgment --
(a) if 6 years have elapsed since the judgment took effect;
5 (b) if the order in the judgment that a person seeks to
enforce is subject to the fulfilment of a condition;
(c) if the property that is proposed for seizure under the
order to satisfy the judgment is in the hands of a
receiver;
10 (d) if the person seeking to enforce the judgment was not
personally a party to the case in which the judgment was
given;
(e) if the person liable to satisfy the judgment was not
personally a party to the case in which the judgment was
15 given, unless section 14(2)(b) applies to the person;
(f) if the judgment is against a partnership and is sought to
be enforced against a person to whom section 14(2)(b)
does not apply;
(g) if the judgment is given in a case between --
20 (i) partnerships having one or more partners in
common; or
(ii) a partnership and one or more of its partners;
or
(h) if the judgment is against a corporation and is sought to
25 be enforced against one or more officers or shareholders
of the corporation.
(2) On an application for leave under subsection (1), the court --
(a) may give leave if it is satisfied that the person seeking to
enforce the judgment is entitled to do so and that the
30 person against whom the order is sought is liable to
satisfy the judgment;
page 11
Civil Judgments Enforcement Bill 2003
Part 3 Provisions applying to all judgments
Division 2 General
s. 14
(b) may order the trial of any issue that needs to be decided
in order to determine if the judgment may be enforced
and, if it may be enforced, by whom and against whom;
and
5 (c) may do so on terms as to costs or otherwise.
(3) On an application for leave under subsection (1)(g) the court
may order accounts to be taken and inquiries to be made.
14. Partnerships, enforcement against
(1) Unless it is made for the purpose of enforcing a judgment
10 against the partnership itself, an enforcement order must not be
made under Part 4 in respect of any available debt in relation to,
or any property of, a partnership.
(2) If a judgment in a case is given against a partnership, an order to
enforce the judgment may be made under Part 4 or 5 --
15 (a) against the partnership or in respect of any available
debt in relation to, or any property of, the partnership;
(b) without the court's leave, against a person who --
(i) was served as a partner with the writ or other
document commencing the case, or with notice
20 of the writ or document, but who did not enter an
appearance;
(ii) entered an appearance in the case as a partner;
(iii) admitted in the case to being a partner; or
(iv) was adjudged in the case to be a partner;
25 or
(c) with the court's leave, against a person who is a partner
but to whom paragraph (b) does not apply.
(3) Section 13(2) applies to an application for leave under this
section.
30 (4) If under Part 4 or 5 an order is made under which any property
of a partnership may be sold or foreclosed, the order must
page 12
Civil Judgments Enforcement Bill 2003
Provisions applying to all judgments Part 3
Suspending the enforcement of judgments Division 3
s. 15
include liberty for the other partner or partners at any time to
purchase or redeem the property.
Division 3 -- Suspending the enforcement of judgments
15. Suspension order
5 (1) A person against whom a judgment is given may apply for an
order suspending the enforcement of all or part of the judgment
to --
(a) the court that gave the judgment; or
(b) a court that is dealing with an appeal against the
10 judgment.
(2) The court may deal with such an application in the absence of
the person entitled to the benefit of the judgment if it is just to
do so.
(3) On such an application, the court may only make such an order
15 if there are special circumstances that justify doing so.
(4) A suspension order may be made for any period (including an
indefinite period) and may be made on terms as to costs or
otherwise.
(5) When or after making a suspension order the court may make
20 any necessary ancillary or consequential order including an
order --
(a) that a means inquiry, default inquiry or interpleader
proceedings be adjourned;
(b) that a means inquiry or default inquiry not be held for
25 such period as the court specifies;
(c) as to the operation or effect of any order that has been
made under Part 4 or 5 or section 101;
(d) that a person imprisoned under section 90 or 98 for a
contempt of court be released from prison for such
30 period and on any terms that the court specifies;
page 13
Civil Judgments Enforcement Bill 2003
Part 3 Provisions applying to all judgments
Division 3 Suspending the enforcement of judgments
s. 16
(e) that prohibits or restricts dealings with a judgment
debtor's property, or the payment of debts owed to a
judgment debtor, while the suspension order has effect.
16. Suspension order, effect of
5 (1) A suspension order has effect according to its contents.
(2) While a suspension order has effect --
(a) the enforcement of the judgment is suspended to the
extent stated in the order;
(b) any order that has been made under Part 4 or 5 or
10 section 101 has effect subject to the suspension order
and any order made under section 15(5).
(3) To the extent that a suspension order suspends the enforcement
of a judgment, the order is to be taken for all purposes to be a
stay of the execution of the judgment to that extent.
page 14
Civil Judgments Enforcement Bill 2003
Enforcing monetary judgments Part 4
General Division 1
s. 17
Part 4 -- Enforcing monetary judgments
Division 1 -- General
17. Interpretation
In this Part, unless the contrary intention appears --
5 "enforcement order" means --
(a) a time for payment order made under section 32;
(b) an instalment order made under section 33;
(c) an earnings appropriation order made under
section 35;
10 (d) a debt appropriation order made under section 49;
(e) a property (seizure and sale) order made under
section 59; or
(f) an order made under section 86.
18. Enforcement orders, applicability of
15 (1) An enforcement order, other than an earnings appropriation
order, may be made in respect of any person, whether a natural
person, a partnership, or a corporation.
(2) An earnings appropriation order may only be made in respect of
a natural person.
20 19. Enforcement orders, application for etc.
(1) A judgment creditor may apply to a court for an enforcement
order for the purpose of satisfying a judgment debt owed to the
judgment creditor.
(2) Subject to section 21, an application for an enforcement order
25 may be made whether or not previously a means inquiry has
been held or an enforcement order has been made.
(3) Subject to section 21, an application for an enforcement order
may be made without notifying the judgment debtor or any
page 15
Civil Judgments Enforcement Bill 2003
Part 4 Enforcing monetary judgments
Division 1 General
s. 20
person to whom the order will be addressed, unless the
regulations provide otherwise.
20. Enforcement and other orders, making of
(1) Subject to section 31, a court may only make an enforcement
5 order in respect of a monetary judgment on the application of
the judgment creditor or a person given leave under
section 13(1)(d).
(2) A court that makes an enforcement order, or any other order,
under this Part may do so on terms as to costs or otherwise.
10 (3) When or after making an enforcement order, or any other order,
under this Part the court may make any necessary ancillary or
consequential order and may do so on terms as to costs or
otherwise.
21. Certain orders only available at or after means inquiry
15 (1) The following enforcement orders --
(a) a time for payment order;
(b) an instalment order;
(c) an earnings appropriation order,
may only be made in respect of a judgment debtor at or, subject
20 to section 31(4), after a means inquiry in respect of the
judgment debtor.
(2) In making an order referred to in subsection (1) in respect of a
judgment debtor who is a natural person, the court should
ensure that the order does not impose unreasonable obligations
25 on the judgment debtor having regard to the judgment debtor's
means to satisfy the judgment.
22. More than one enforcement order, applications for
(1) If an enforcement order is in effect against a judgment debtor in
respect of a monetary judgment, the judgment creditor may
page 16
Civil Judgments Enforcement Bill 2003
Enforcing monetary judgments Part 4
General Division 1
s. 23
apply for one or more additional enforcement orders against the
debtor in respect of the judgment.
(2) On such an application, a court must not make an additional
enforcement order against the judgment debtor in respect of the
5 monetary judgment unless it is satisfied that the additional
order --
(a) will not impose unreasonable obligations on the
judgment debtor having regard to the judgment debtor's
means to satisfy the judgment; and
10 (b) is justified having regard to the one or more
enforcement orders already in effect.
23. Multiple enforcement orders, effect of
(1) This section applies if, as a result of 2 or more monetary
judgments given against one person, the person at one time is
15 liable to pay 2 or more judgment debts, irrespective of whether
the judgment creditor under each monetary judgment is the
same person.
(2) If 2 or more time for payment orders are in effect at one time in
respect of the separate monetary judgments, each order has
20 effect according to its contents.
(3) If 2 or more instalment orders are in effect at one time in respect
of the separate monetary judgments, the orders have effect
concurrently.
(4) If 2 or more debt appropriation orders addressed to the same
25 third person are in effect at one time in respect of the separate
monetary judgments, the orders have effect consecutively
according to when they are served on the third person.
(5) If 2 or more property (seizure and sale) orders are in effect at
one time in respect of the separate monetary judgments, the
30 orders have effect according to Division 6.
page 17
Civil Judgments Enforcement Bill 2003
Part 4 Enforcing monetary judgments
Division 1 General
s. 24
24. Money recovered, judgment creditor's duties as to
(1) A judgment creditor who receives or recovers money in respect
of a judgment debt, whether or not under an enforcement order,
must apply the money so as to discharge --
5 (a) firstly, the judgment sum;
(b) secondly, any interest due to the judgment creditor on
the judgment sum; and
(c) thirdly, any enforcement costs in connection with the
judgment.
10 (2) If requested to do so by --
(a) a registrar of the court that gave the judgment; or
(b) the Sheriff, if an enforcement order in respect of the
judgment has been issued and addressed to the Sheriff,
a judgment creditor must, within 7 days after receiving the
15 request, give the person who made the request an account
showing --
(c) the judgment sum;
(d) any interest due on the judgment sum;
(e) the enforcement costs in connection with the judgment;
20 (f) money received or recovered by the judgment creditor in
satisfaction of the judgment debt; and
(g) the amount of the judgment debt at the time the account
is given.
(3) A person who contravenes a request made under subsection (2)
25 is guilty of a contempt of court.
25. Excess money recovered, consequences
If a judgment creditor receives or recovers an amount in excess
of the amount required to satisfy the judgment debt the
judgment creditor holds the excess on trust for the judgment
30 debtor.
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Means inquiry Division 2
s. 26
Division 2 -- Means inquiry
26. Means inquiry, nature of
A means inquiry in respect of a judgment debtor is an inquiry
conducted before a court in order to determine --
5 (a) the judgment debtor's means to pay the judgment debt
having regard to the income, assets and liabilities of the
judgment debtor and, if applicable, his or her spouse or
de facto partner and any dependents of the judgment
debtor and his or her spouse or de facto partner;
10 (b) whether there are or will be any earnings of the
judgment debtor that might be appropriated to satisfy the
judgment debt and, if there are, the net earnings for the
purpose of Division 4;
(c) whether there is or will be any available debt that might
15 be appropriated to satisfy the judgment debt; and
(d) the existence and whereabouts and value of any property
of the judgment debtor that might be seized and sold to
satisfy the judgment debt.
27. Means inquiry, application for by judgment creditor
20 (1) A judgment creditor may apply for a means inquiry to be held in
respect of the judgment debtor.
(2) Such an application may be made whether or not previously a
means inquiry has been held or an enforcement order has been
made.
25 (3) Such an application must --
(a) if the judgment debtor is a natural person, contain his or
her name and address;
(b) if the judgment debtor is a partnership, contain the name
and address of a partner;
30 (c) if the judgment debtor is a corporation, contain the name
and address of an officer of the corporation;
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Part 4 Enforcing monetary judgments
Division 2 Means inquiry
s. 28
(d) contain the name and address of any other person who
the judgment creditor thinks should be summoned to the
inquiry to give or produce evidence; and
(e) for each such person indicate whether a summons under
5 section 29(1)(a) or (b) or both is required.
(4) On receiving such an application the court must set a date for
the means inquiry and notify the judgment creditor of it.
28. Means inquiry, application for by judgment debtor
(1) A judgment debtor who applies for a suspension order on the
10 grounds that the debtor is unable to pay the judgment debt may
apply for a means inquiry to be held in respect of the judgment
debtor.
(2) Such an application may be made whether or not previously a
means inquiry has been held or an enforcement order has been
15 made.
(3) Such an application must be served on the judgment creditor.
(4) A judgment creditor who is served with such an application may
request the court to issue a summons to a person who the
judgment creditor thinks should be summoned to the inquiry to
20 give or produce evidence.
(5) Such a request must --
(a) contain the name and address of each person to be
summoned; and
(b) for each such person indicate whether a summons under
25 section 29(1)(a) or (b) or both is required.
(6) On receiving an application made under subsection (1) the court
must set a date for the means inquiry and notify --
(a) the judgment debtor and judgment creditor of the date;
and
30 (b) notify the judgment debtor of the duties in section 30(3).
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Means inquiry Division 2
s. 29
29. Means inquiry, summons to attend
(1) In respect of each person named in an application under
section 27(3), or in a request under section 28(5), or in a request
made under subsection (2), the court may issue either or both of
5 the following, according to the application or request --
(a) a summons to attend a means inquiry to give oral
evidence;
(b) a summons to attend and produce to the court, for use in
the inquiry, any record or thing that is or may relate to
10 the matters listed in section 26 and that is detailed in the
summons.
(2) During a means inquiry the judgment creditor or judgment
debtor may request the court to summons a person to the inquiry
to give or produce evidence.
15 (3) A summons issued under subsection (1) must be served
personally.
(4) If a person who has been summoned under subsection (1) does
not attend as ordered by the summons, the court may issue a
warrant to have the person arrested and brought before the
20 court.
(5) A person who has been summoned under subsection (1) and
who, without a reasonable excuse --
(a) does not obey the summons; or
(b) refuses to be sworn or answer any lawful question,
25 is guilty of a contempt of court.
30. Means inquiry, conduct of
(1) In this section --
"lawyer" means a certificated practitioner within the meaning
of the Legal Practice Act 2003.
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Division 2 Means inquiry
s. 31
(2) At a means inquiry the court is to determine the matters listed in
section 26.
(3) At a means inquiry held on the application of a judgment debtor
the judgment debtor must produce to the court all records that
5 relate to the matters listed in section 26 and that are in the
possession or under the control of the judgment debtor.
(4) A judgment debtor who contravenes subsection (3) is guilty of a
contempt of court.
(5) A court may adjourn a means inquiry.
10 (6) At a means inquiry in the Magistrates Court a person who is not
a lawyer and who is an employee of, or under the control or
direction of --
(a) the judgment creditor; or
(b) the judgment creditor's lawyer,
15 may appear on behalf of the judgment creditor, despite the
Legal Practice Act 2003 section 123.
31. Orders at or after a means inquiry
(1) At a means inquiry the court, having regard to the matters listed
in section 26 that it has determined, may --
20 (a) make any enforcement order that is just, whether or not
the judgment creditor has applied for the order; or
(b) make a suspension order on the application of the
judgment debtor.
(2) After a means inquiry has been held, the judgment creditor may
25 apply for --
(a) a time for payment order;
(b) an instalment order; or
(c) an earnings appropriation order.
(3) On receiving such an application the court must set a date for
30 hearing the application, notify the judgment creditor of it and
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Orders for payment Division 3
s. 32
issue a summons to the judgment debtor requiring the debtor to
appear before the court and to say why the order applied for
should not be made.
(4) On the hearing of the application, the court, having regard to the
5 matters listed in section 26 that it has determined at the means
inquiry, may make the order sought by the judgment creditor, or
some other enforcement order, if --
(a) the court is satisfied that there has not been a material
change in those matters since the inquiry; or
10 (b) the judgment debtor, having been summoned, does not
attend.
Division 3 -- Orders for payment
32. Time for payment order
(1) In order to recover a judgment debt, a judgment creditor may
15 apply to the court for an order, addressed to the judgment
debtor, that orders the debtor to pay the judgment debt --
(a) immediately; or
(b) on or before a date set by the court.
(2) The court may make such an order, subject to sections 21
20 and 22.
33. Instalment order
(1) In order to recover a judgment debt, a judgment creditor may
apply to the court for an order, addressed to the judgment
debtor, that orders the debtor to pay the judgment debt by
25 instalments of amounts and at times set by the court in the order.
(2) The court may make such an order, subject to sections 21
and 22.
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Division 4 Appropriating a judgment debtor's earnings
s. 34
Division 4 -- Appropriating a judgment debtor's earnings
34. Interpretation
In this Division, unless the contrary intention appears --
"net earnings", in relation to a judgment debtor, means the
5 total amount of the judgment debtor's earnings from any
person less all amounts required to be deducted, before the
payment of those earnings to the judgment debtor, under a
law of the Commonwealth or another written law;
"third person", in relation to an earnings appropriation order,
10 means the person to whom the order is addressed.
35. Earnings appropriation order
(1) In order to recover a judgment debt, a judgment creditor may
apply to the court for an order requiring a person who is liable
to pay earnings to the judgment debtor to pay a portion of those
15 earnings to the judgment creditor at the time or times when the
balance of the earnings is paid to the judgment debtor.
(2) The court may make such an order, subject to sections 18(2), 21
and 22 and this section.
(3) An earnings appropriation order must not be made unless an
20 instalment order has been made in respect of the judgment debt
and has been disobeyed and cancelled.
(4) An earnings appropriation order must not be made against a
judgment debtor in respect of a monetary judgment if another
earnings appropriation order against the judgment debtor is in
25 effect, whether in respect of that judgment or another monetary
judgment.
(5) An earnings appropriation order must not be addressed to more
than one person who is liable to pay earnings to the judgment
debtor.
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Appropriating a judgment debtor's earnings Division 4
s. 36
(6) Despite any other law, an earnings appropriation order may be
made in respect of any earnings owed by the State to the
judgment debtor.
(7) If an earnings appropriation order is in effect in relation to a
5 judgment debtor, a subsequent earnings appropriation order
made in respect of the same judgment debtor in respect of
another monetary judgment and addressed to the same person to
whom the first order is addressed has no effect.
36. Earnings appropriation order, content and service of
10 (1) An earnings appropriation order must --
(a) be addressed to the person who is liable to pay earnings
to the judgment debtor and who will be bound by the
order;
(b) state the name and address of the judgment debtor and
15 the judgment creditor;
(c) identify the earnings to which the order applies;
(d) state the judgment debt as at the date of the order;
(e) order the third person to pay the judgment creditor from
the earnings a stated amount or amounts;
20 (f) state when the amount or amounts are to be paid; and
(g) contain any other information that is prescribed by the
regulations.
(2) The judgment creditor must serve the earnings appropriation
order on the third person in accordance with the regulations.
25 37. Earnings appropriation order, effect of
(1) An earnings appropriation order takes effect when it is served
on the third person.
(2) An earnings appropriation order has effect according to its
contents.
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Division 4 Appropriating a judgment debtor's earnings
s. 38
(3) An earnings appropriation order ceases to have effect --
(a) when the third person is notified of the fact by the court
or the judgment creditor;
(b) when the third person becomes aware that an objection
5 has been allowed under section 41;
(c) when the judgment debt is satisfied; or
(d) when an order cancelling it has effect under section 103,
whichever happens first.
(4) If an earnings appropriation order ceases to have effect or the
10 judgment debt to which it relates is satisfied, the judgment
creditor must immediately notify the third person.
Penalty: Imprisonment for 12 months.
38. Third person's obligations
(1) A third person who --
15 (a) pays an amount to the judgment creditor under an
earnings appropriation order; or
(b) retains an amount under section 39,
must give the judgment debtor a written notice containing
details of the amounts.
20 (2) A person who knowingly makes a statement in a notice given
under subsection (1) that is false or misleading in a material
particular commits an offence.
Penalty: Imprisonment for 12 months.
39. Third person entitled to expenses of obeying order
25 A third person who obeys an earnings appropriation order --
(a) is entitled to the reasonable expenses (not exceeding the
prescribed amount) of doing so; and
(b) may retain an amount equal to those expenses from the
balance of the earnings due to the judgment debtor after
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Appropriating a judgment debtor's earnings Division 4
s. 40
payment of the amount under the earnings appropriation
order to the judgment creditor.
40. Third person may object to appropriation order
(1) A third person who is served with an earnings appropriation
5 order may object to the order on the grounds that the third
person --
(a) is not a person who is liable to pay earnings to the
judgment debtor; or
(b) ceased to be such a person on a date after the order was
10 served.
(2) The objection must --
(a) be in writing;
(b) state the grounds on which it is made and the facts that
support the grounds; and
15 (c) be lodged at the court within 7 days after the day on
which the third person --
(i) is served with the earnings appropriation order if
the objection is made under subsection (1)(a); or
(ii) ceases to be a person who is liable to pay
20 earnings to the judgment debtor if the objection
is made under subsection (1)(b).
(3) The court must serve a copy of the objection on the judgment
creditor and judgment debtor.
41. Objection to appropriation order, consequences of
25 (1) A judgment creditor who is served with an objection under
section 40(3) may allow the objection.
(2) If the judgment creditor does not allow the objection within
7 days after the date of it, either the third person or the judgment
debtor may apply to the court for an order that the objection be
30 allowed.
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Division 4 Appropriating a judgment debtor's earnings
s. 42
(3) Notice of the application and of when and where it will be heard
must be given in accordance with the regulations to the person
who made the objection and to each person on whom the
objection was served.
5 (4) At the hearing of the application, the court may allow or reject
the objection.
(5) If an objection is allowed under this section, notice of the fact
must be given in accordance with the regulations to the person
who made the objection and to each person on whom the
10 objection was served.
42. Earnings appropriation order, failure to obey
(1) If a third person who is served with an earnings appropriation
order --
(a) does not obey the order;
15 (b) does not object to the order under section 40; or
(c) objects to the order under section 40 but does not appear
at the hearing of the objection,
the judgment creditor may apply to the court for an enforcement
order for the purposes of recovering from the third person --
20 (d) the amount that was not paid in accordance with the
earnings appropriation order; and
(e) the costs of obtaining and carrying out the enforcement
order.
(2) The court may make such an order.
25 (3) For the purposes of subsection (2) this Part applies as if the third
person were a judgment debtor and the money to be recovered
from the third person were a judgment debt.
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Appropriating a judgment debtor's earnings Division 4
s. 43
43. Earnings appropriation order, effect of obeying
(1) Any amount --
(a) paid by the third person to the judgment creditor under
an earnings appropriation order;
5 (b) retained by a third person under section 39; or
(c) recovered from a third person under section 42,
discharges the third person from the obligation to pay the
amount to the judgment debtor and is not recoverable from the
third person by the judgment debtor.
10 (2) Subsection (1) applies even if, after the amount is paid or
recovered --
(a) enforcement of the monetary judgment that gave rise to
the earnings appropriation order is suspended; or
(b) the monetary judgment is set aside or reversed.
15 44. Employees, protection of
(1) If an employer, on the ground that an earnings appropriation
order has been served on the employer in respect of the earnings
of an employee, treats the employee less favourably than in the
same circumstances, or in circumstances that are not materially
20 different, the employer treats or would treat an employee whose
earnings are not the subject of such an order, the employer
commits an offence.
Penalty: $5 000.
(2) If --
25 (a) an employer is charged with an offence under
subsection (1) that is alleged to have been committed
within 6 months after the employer was served with the
earnings appropriation order concerned; and
(b) all of the elements of the offence are proved except the
30 grounds for the employer's treatment of the employee,
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Division 5 Appropriating debts owed to a judgment debtor
s. 45
the onus of proving that the grounds for the employer's
treatment of the employee were not that the earnings
appropriation order has been served on the employer is on the
employer.
5 Division 5 -- Appropriating debts owed to a judgment debtor
45. Interpretation
In this Division and Schedule 1, unless the contrary intention
appears --
"account" includes --
10 (a) a withdrawable share account or deposit account; and
(b) any record of a subscription for withdrawable shares
or of a deposit;
"appropriated debt" means an available debt, or the portion of
an available debt, to which a debt appropriation order
15 applies;
"financial institution" means --
(a) an ADI (authorised deposit-taking institution) as
defined in section 5 of the Banking Act 1959 of the
Commonwealth;
20 (b) a bank constituted by a law of a State, a Territory or
the Commonwealth;
(c) a society registered or deemed to be registered under
the Co-operative and Provident Societies Act 1903;
(d) a society within the meaning of the Housing Societies
25 Act 1976 section 5; or
(e) an investment fund or corporation;
"third person", in relation to a debt appropriation order, means
the person to whom the order is addressed.
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Appropriating debts owed to a judgment debtor Division 5
s. 46
46. "Available debt", definition of
(1) An available debt in relation to a judgment debtor is any
obligation on the part of a person to pay money to the debtor
alone, or to the debtor jointly with another or others, which
5 obligation, at the time a debt appropriation order is made --
(a) is current and unconditional, irrespective of whether the
money or any part of it is payable at some future time;
(b) will arise on the fulfilment of one or more conditions
under --
10 (i) an existing agreement or trust;
(ii) the will of a deceased person; or
(iii) an issued share or other marketable security;
(c) may arise in respect of an existing cause of action; or
(d) is imposed by a written law and is likely to arise as a
15 result of an event that has occurred.
(2) The following are not available debts in relation to a judgment
debtor --
(a) earnings that are or may be payable to the debtor;
(b) money standing to the credit of the debtor in a court;
20 (c) money that is payable to the debtor as a trustee and in
which the debtor does not have a beneficial interest,
unless the judgment concerned was given against the
debtor as that trustee.
47. Workmen's Wages Act 1898, application of
25 This Division is subject to the Workmen's Wages Act 1898
section 6.
48. Available debts, provisions about
Schedule 1 has effect.
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Division 5 Appropriating debts owed to a judgment debtor
s. 49
49. Debt appropriation order
(1) In order to recover a judgment debt, a judgment creditor may
apply to the court for an order requiring a person who owes or
will or may owe an available debt to the judgment debtor alone
5 or to the judgment debtor jointly with another or others to
pay --
(a) the whole amount of the available debt; or
(b) such of the available debt as will satisfy the judgment
debt,
10 to the judgment creditor at the time or times when the available
debt would otherwise be paid to the judgment debtor.
(2) The court may make such an order, subject to sections 20(1)
and 22.
(3) When or after making a debt appropriation order, the court may
15 make an order under Schedule 1 clause 2, 3 or 4.
(4) A debt appropriation order may apply to more than one
available debt that is or will be or may be owed by one person
to the judgment debtor alone or to the judgment debtor jointly
with another or others.
20 (5) Despite any other law, a debt appropriation order may be made
in respect of any available debt owed by the State to the
judgment debtor.
50. Debt appropriation order, content and service of
(1) A debt appropriation order is to --
25 (a) be addressed to the person who owes or will or may owe
the available debt;
(b) state the name and address of the judgment debtor and
the judgment creditor;
(c) state the judgment debt as at the date of the order;
30 (d) identify the available debt to which the order applies;
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s. 51
(e) if the available debt is, will be or may be owed to the
judgment debtor jointly with another or others, state the
portion of the available debt to which the order applies;
(f) order the third person to pay the judgment creditor --
5 (i) the whole of the appropriated debt; or
(ii) such of the appropriated debt as will satisfy the
judgment debt,
as the case requires, after retaining any amount to which
the third person is entitled under section 53(1); and
10 (g) contain any other information that is prescribed by the
regulations.
(2) The judgment creditor must serve the debt appropriation order
on the third person in accordance with the regulations.
51. Debt appropriation order, effect of
15 (1) A debt appropriation order takes effect when it is served on the
third person.
(2) A debt appropriation order has effect according to its contents
subject to --
(a) Schedule 1 clause 2 and any order made under that
20 clause;
(b) any order made under Schedule 1 clause 3; and
(c) any order made under Schedule 1 clause 4.
(3) If an appropriated debt is payable to the judgment debtor in full
at one time, the third person must pay the full debt to the
25 judgment creditor --
(a) if the debt is due and payable to the judgment debtor at
the time the order is made -- within 7 days after the day
on which the debt appropriation order is served on the
third person; or
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Division 5 Appropriating debts owed to a judgment debtor
s. 51
(b) in any other case -- within 7 days after the day on
which the appropriated debt becomes due and payable to
the judgment debtor.
(4) If an appropriated debt is payable to the judgment debtor in 2 or
5 more instalments, the third person must pay each instalment to
the judgment creditor --
(a) if any instalment is due and payable to the judgment
debtor at the time the order is made -- within 7 days
after the day on which the debt appropriation order is
10 served on the third person; or
(b) in any other case -- within 7 days after the day on
which the instalment becomes due and payable to the
judgment debtor.
(5) If a debt appropriation order relates to the whole or a part of an
15 amount standing to the credit of a judgment debtor in an account
with a financial institution, the order, while it is in effect, has
effect as an irrevocable demand for payment, or an irrevocable
notice of withdrawal, made to the institution --
(a) under the contract between the judgment debtor and the
20 institution in respect of the account; and
(b) on --
(i) the date when the order is served on the
institution; or
(ii) if the judgment debtor is not entitled under the
25 contract to make a demand for payment or give
notice of withdrawal on that date -- the date on
which the judgment debtor would, but for the
order, have become so entitled.
(6) A debt appropriation order ceases to have effect --
30 (a) when the third person is notified of the fact by the court
or the judgment creditor;
(b) when the third person is notified that an objection has
been allowed under section 55;
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(c) when the judgment debt is satisfied; or
(d) when an order cancelling it has effect under section 103,
whichever happens first.
(7) If a debt appropriation order ceases to have effect or the
5 judgment debt to which it relates is satisfied, the judgment
creditor must immediately notify the third person.
Penalty: Imprisonment for 12 months.
52. Third person's obligations
(1) If --
10 (a) a third person is served with a debt appropriation order;
and
(b) the appropriated debt under the order, or any part of
it --
(i) is not or will not be or may not be due and
15 payable until more than 7 days after the day on
which the order is served; or
(ii) will not be due and payable until a condition is
fulfilled,
the third person must within 7 days after the day on which the
20 order is served give the judgment creditor a written notice
stating --
(c) the date on which the appropriated debt, or any part of
it, is or will be or may be due and payable; and
(d) the amount of the appropriated debt if that amount is
25 less than the judgment debt.
(2) A third person who --
(a) pays an amount to the judgment creditor under a debt
appropriation order; or
(b) retains an amount under section 53(1),
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Division 5 Appropriating debts owed to a judgment debtor
s. 53
must give the judgment debtor a written notice containing
details of the amounts.
(3) A person who knowingly makes a statement in a notice given
under subsection (1) or (2) that is false or misleading in a
5 material particular commits an offence.
Penalty: Imprisonment for 12 months.
53. Third person entitled to expenses of obeying order
(1) A third person who obeys a debt appropriation order is entitled
to the reasonable expenses (not exceeding the prescribed
10 amount) of doing so.
(2) A third person may recover an amount equal to the expenses
referred to in subsection (1) --
(a) if the debt appropriation order relates to the whole of the
available debt -- by retaining the amount from the
15 available debt before paying the balance of it to the
judgment creditor;
(b) if the debt appropriation order relates to a part of the
available debt -- by retaining the amount --
(i) firstly, from the balance of the available debt that
20 would remain after paying the appropriated debt
to the judgment creditor; and
(ii) secondly and if necessary, from the appropriated
debt before paying the balance of the
appropriated debt to the judgment creditor.
25 54. Third person may object to appropriation order
(1) A third person who is served with a debt appropriation order
may object to the order on one or more of these grounds --
(a) that a person other than the judgment debtor and the
judgment creditor owns or has a claim on or interest in
30 the appropriated debt;
(b) that the appropriated debt does not and will not exist;
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(c) that the third person has an unsatisfied monetary
judgment against the judgment creditor or the judgment
debtor.
(2) The objection must --
5 (a) be in writing;
(b) state the grounds on which it is made and the facts that
support the grounds; and
(c) be lodged at the court within 7 days after the day on
which the third person is served with the debt
10 appropriation order.
(3) The court must serve a copy of the objection on --
(a) the judgment creditor;
(b) the judgment debtor; and
(c) any other person whom the third person claims owns or
15 has a claim on or interest in the appropriated debt.
(4) A civil action does not lie against a third person who has made
an objection under this section in respect of the disclosure of
any information in the objection, if the disclosure was
reasonable in the circumstances.
20 55. Objection to appropriation order, consequences of
(1) A judgment creditor who is served with an objection under
section 54(3) may allow the objection.
(2) If the judgment creditor does not allow the objection within
7 days after the date of it, any of --
25 (a) the third person;
(b) the judgment debtor; or
(c) any other person whom the third person claims owns or
has a claim on or interest in the appropriated debt,
may apply to the court for an order that the objection be
30 allowed.
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(3) Notice of the application and of when and where it will be heard
must be given in accordance with the regulations to the person
who made the objection and to each person on whom the
objection was served.
5 (4) At the hearing of the application, the court may allow or reject
the objection.
(5) If an objection is allowed under this section, notice of the fact
must be given in accordance with the regulations to the person
who made the objection and to each person on whom the
10 objection was served.
56. Debt appropriation order, failure to obey
(1) If a third person who is served with a debt appropriation
order --
(a) does not obey the order;
15 (b) does not object to the order under section 54; or
(c) objects to the order under section 54 but does not appear
at the hearing of the objection,
the judgment creditor may apply to the court for an enforcement
order for the purposes of recovering from the third person --
20 (d) the amount that was not paid in accordance with the debt
appropriation order; and
(e) the costs of obtaining and carrying out the enforcement
order.
(2) The court may make such an order.
25 (3) For the purposes of subsection (2) this Part applies as if the third
person were a judgment debtor and the money to be recovered
from the third person were a judgment debt.
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57. Debt appropriation order, effect of obeying
(1) Any amount --
(a) paid by a third person to the judgment creditor under a
debt appropriation order;
5 (b) recovered by a third person under section 53; or
(c) recovered from a third person under section 56,
discharges the third person from the obligation to pay the
amount to the judgment debtor and is not recoverable from the
third person by the judgment debtor.
10 (2) Subsection (1) applies even if, after the amount is paid or
recovered --
(a) enforcement of the monetary judgment that gave rise to
the debt appropriation order is suspended; or
(b) the monetary judgment is set aside or reversed.
15 58. Money in court due to a judgment debtor, appropriation of
(1) In order to recover a judgment debt, a judgment creditor may
apply to any court in which there is money standing to the credit
of the judgment debtor for an order that the money, or so much
of it as is sufficient to satisfy the judgment debt, be paid to the
20 judgment creditor.
(2) The court may make such an order.
(3) On the making of an application under subsection (1), the
money in court must not be paid to the judgment debtor until the
application is finally determined.
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Division 6 -- Seizing and selling a judgment debtor's property
Subdivision 1 -- General
59. Property (seizure and sale) order
(1) In order to recover a judgment debt, a judgment creditor may
5 apply to the court for an order authorising the Sheriff to seize
and sell the judgment debtor's property to wholly or partially
satisfy the judgment debt.
(2) The court may make such an order.
60. Property (seizure and sale) order, content and service of
10 (1) A property (seizure and sale) order must --
(a) be addressed to the Sheriff;
(b) state the name and address of the judgment debtor and
the judgment creditor;
(c) state the judgment debt as at the date of the order; and
15 (d) contain any other information that is prescribed by the
regulations.
(2) The judgment creditor must serve the property (seizure and sale)
order on the Sheriff in accordance with the regulations unless
the court has given the order to the Sheriff.
20 61. Receipt of order to be recorded by Sheriff
On receipt of a property (seizure and sale) order the Sheriff
must record the date and time when it was received.
62. Property (seizure and sale) order, duration of
(1) A property (seizure and sale) order ceases to have effect --
25 (a) when the judgment debt in relation to which it was made
is satisfied;
(b) when under section 102 it ceases to have effect; or
(c) when an order cancelling it has effect under section 103,
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whichever happens first.
(2) If --
(a) a property (seizure and sale) order is registered under the
Transfer of Land Act 1893 section 133; and
5 (b) the sale period referred to in that section in respect of
the order expires at a time after the order ceases to have
effect under section 102,
the property (seizure and sale) order is to be taken to remain in
effect until the sale period expires, despite section 102.
10 (3) If a property (seizure and sale) order ceases to have effect
before any property seized under it is sold, the property must be
released and returned to a person who is entitled to its
possession.
63. Determining a judgment debtor's interest in property
15 (1) In this section --
"interest", in any property, means any security, charge or lien
over, claim on, or right to, the property or any other legal or
equitable interest in the property;
"public authority" means a public sector body (within the
20 meaning of the Public Sector Management Act 1994
section 3(1)), a local government or a regional local
government.
(2) The powers in this section may only be exercised by the Sheriff
after receiving a property (seizure and sale) order and for the
25 purpose of determining whether and to what extent a judgment
debtor has any saleable interest in any personal or real property
that might be sold under the order.
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(3) The Sheriff, in writing, may request any person, other than the
judgment debtor, who the Sheriff believes on reasonable
grounds has or may have an interest in any such property to
disclose to the Sheriff --
5 (a) the nature of the interest;
(b) if the interest is a security over the property --
(i) the amount secured against the property;
(ii) the amount outstanding under the security;
(iii) the amount and rate of interest accruing; and
10 (iv) any change that occurs to the terms of the
security;
(c) the amount of money that is owed to the person in
relation to the property; and
(d) any other information the Sheriff considers is or may be
15 relevant to determining the matters in subsection (2).
(4) The Sheriff, in writing, may request a public authority to
disclose to the Sheriff the amount of any rates, taxes, service
charges, or other amounts, that are due and unpaid in respect of
any such real property.
20 (5) A person, other than a public authority, who contravenes a
request made under subsection (3) is guilty of a contempt of the
court that issued the property (seizure and sale) order.
(6) The Sheriff may disclose any information about any property
that has been obtained by the Sheriff to any potential purchaser
25 of the judgment debtor's interest in the property.
64. Personal property to be sold in preference to real property
(1) Under a property (seizure and sale) order, a judgment debtor's
saleable interest in any real property must not be sold unless the
Sheriff is satisfied that the amount that is reasonably likely to be
30 realised from selling the judgment debtor's saleable interest in
any personal property under the order will not be sufficient to
satisfy the judgment debt.
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(2) Subsection (1) does not prevent a judgment debtor's saleable
interests in real property and in personal property being sold at
the same time.
65. Only sufficient property to be sold
5 (1) Under a property (seizure and sale) order, the Sheriff must not
sell more property than is sufficient, in the Sheriff's opinion, to
wholly satisfy the judgment debt.
(2) Subsection (1) does not prevent the Sheriff from making one or
more additional sales of property if a sale of property has not
10 been sufficient to satisfy the judgment debt.
66. Seized property, Sheriff to determine fair value of
(1) Before selling a judgment debtor's saleable interest in personal
or real property under a property (seizure and sale) order, the
Sheriff must take reasonable steps to determine a fair value for
15 the interest.
(2) For the purposes of determining a fair value the Sheriff may --
(a) request the judgment debtor to provide the Sheriff with
such information relevant to the value of the interest as
is known to the debtor or is reasonably capable of being
20 ascertained by the debtor;
(b) if the nature and apparent value of the interest is such
that it is reasonable to do so, engage a suitably qualified
and experienced person to give the Sheriff a written
valuation of the interest.
25 67. Interests of others
If a person other than the judgment debtor has any legal or
equitable interest in any personal or real property in which a
judgment debtor has a saleable interest that may be sold under a
property (seizure and sale) order, that interest and that of the
30 debtor may be sold together if --
(a) the Sheriff is of the opinion that such a sale is desirable;
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(b) the other person consents in writing; and
(c) the Sheriff and the other person agree in writing before
the sale as to the division of --
(i) the expenses of and incidental to the sale or any
5 attempted sale of the property; and
(ii) the proceeds of the sale after payment of those
expenses.
68. Sale to be advertised
(1) The Sheriff must advertise any intended sale of a judgment
10 debtor's saleable interest in personal or real property under a
property (seizure and sale) order in a reasonable manner.
(2) A judgment debtor's saleable interest in personal or real
property must not be sold under a property (seizure and sale)
order unless at least 7 days have elapsed since the intended sale
15 was first advertised under subsection (1), except with the
judgment debtor's written consent.
(3) Despite subsections (1) and (2), perishable personal property
may be sold without having advertised its intended sale.
69. Place and manner of sale
20 (1) Subject to any order made by a court under this section, the sale
under a property (seizure and sale) order of a judgment debtor's
saleable interest in personal or real property --
(a) may be conducted --
(i) in the case of personal property -- at the place
25 where the property was seized or at any other
place, as the Sheriff thinks fit;
(ii) in the case of real property -- on the property or
at any other place, as the Sheriff thinks fit;
(b) must be by public auction; and
30 (c) must not be for less than a fair value of the interest.
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(2) The Sheriff or the judgment creditor may apply to the court that
made a property (seizure and sale) order for an order as to any
or all of the following in relation to a saleable interest to which
the order applies --
5 (a) that the interest may be sold by public tender;
(b) that the interest may be sold by private agreement;
(c) that the interest may be sold for an amount that is less
than a fair value of the interest.
(3) The judgment debtor is entitled to be heard on an application
10 made under subsection (2).
(4) The court may make any or all of such orders.
(5) When or after making an order under subsection (2)(c) a court
may order that the interest not be sold for less than an amount
set by the court.
15 70. Transfers of property sold, Sheriff may sign
(1) If any property is sold under a property (seizure and sale) order,
the Sheriff may sign any document that is needed to transfer the
property to its purchaser.
(2) A document signed under subsection (1) has effect as if it were
20 signed by the judgment debtor named in the property (seizure
and sale) order.
71. Purchasers of property sold, protection of
(1) In this section --
"third party interest", in relation to property that has been sold
25 under a property (seizure and sale) order, means any legal
or equitable estate or interest in the property of a person
other than the judgment debtor.
(2) If an enforcement officer, under a property (seizure and sale)
order, sells any saleable interest in property, other than a
30 saleable interest that is registered under the Transfer of Land
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Act 1893 in respect of land under the operation of that Act, the
purchaser acquires a good title to the property subject only to --
(a) any third party interest in relation to the property that
has been registered, or of which public notice has been
5 given, under a written law before the sale;
(b) any other third party interest in relation to the property,
a claim for which has either been admitted under
section 84(1) or determined as valid by a court in
interpleader proceedings, before the sale; and
10 (c) any third party interest acquired before the sale in the
manner set out in section 74(4)(a) and (b).
(3) If an enforcement officer, under a property (seizure and sale)
order, sells any property, the enforcement officer is not liable to
any person in respect of the sale unless it is proved that the
15 officer had notice of, or by making reasonable inquiries might
have ascertained, the existence of a third party interest.
(4) Subsections (2) and (3) do not affect the entitlement of a person
who claims a third party interest in any property sold under a
property (seizure and sale) order to a remedy against a person,
20 other than the enforcement officer or the purchaser of the
property, if the claimant proves that at the time of the sale the
claimant had a third party interest in the property.
72. Proceeds of sale, how to be applied
(1) The Sheriff is to apply the money from the sale of any property
25 by the Sheriff under a property (seizure and sale) order (the
"proceeds") in accordance with this section.
(2) Firstly, the proceeds are to be applied in the payment of the
expenses of, and incidental to, the sale and any attempted sale of
the property.
30 (3) Secondly, the proceeds are to be applied in payment of the fees,
expenses, or other amounts, that are paid or payable under this
Act or another written law in connection with enforcing the
judgment.
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(4) Thirdly, the proceeds are to be applied --
(a) if there is only one judgment creditor who has obtained
a property (seizure and sale) order -- in payment to the
judgment creditor of an amount sufficient to satisfy the
5 judgment debt;
(b) if there is more than one judgment creditor who has
obtained a property (seizure and sale) order -- in
payment to them according to the priorities of their
orders determined --
10 (i) in the case of the proceeds of a sale of personal
property under Subdivision 2 -- in accordance
with subsection (6);
(ii) in the case of the proceeds of a sale of real
property under Subdivision 3 -- in accordance
15 with subsection (7).
(5) Fourthly, the proceeds are to be applied in the payment of any
surplus to the judgment debtor.
(6) For the purposes of subsection (4)(b)(i) the proceeds are to be
paid to those judgment creditors who obtained property (seizure
20 and sale) orders in priority according to the order in which their
orders were received by the Sheriff.
(7) For the purposes of subsection (4)(b)(ii) the proceeds are to be
paid --
(a) in the case of the proceeds of a sale of a saleable interest
25 that is registered under the Transfer of Land Act 1893 in
respect of land under the operation of that Act --
(i) firstly, to each judgment creditor who, under
section 133 of that Act, registered a property
(seizure and sale) order in respect of the interest,
30 in priority according to the order in which the
orders were registered under that section; and
(ii) secondly, to each judgment creditor who did not
register a property (seizure and sale) order under
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that section in respect of the interest, in priority
according to the order in which the orders were
received by the Sheriff;
(b) in the case of the proceeds of a sale of a saleable interest
5 that is not registered under the Transfer of Land
Act 1893 in respect of land under the operation of that
Act -- to each judgment creditor in priority according to
the order in which the property (seizure and sale) orders
were received by the Sheriff;
10 (c) in the case of the proceeds of a sale of a saleable interest
in land that is not under the operation of the Transfer of
Land Act 1893 --
(i) firstly, to each judgment creditor who, under the
Registration of Deeds Act 1856, registered a
15 property (seizure and sale) order in respect of the
interest, in priority according to the order in
which the orders were registered under that Act;
and
(ii) secondly, to each judgment creditor who did not
20 register a property (seizure and sale) order under
that Act in respect of the interest, in priority
according to the order in which the orders were
received by the Sheriff.
73. Priority of orders, establishing
25 If it is not possible under this Part to determine the priority
between 2 or more property (seizure and sale) orders, the
priority is to be determined --
(a) by the times when the orders were made by the court;
(b) if the priority cannot be determined under paragraph (a),
30 by the times when the judgments to which the orders
respectively relate were given; and
(c) if the priority cannot be determined under paragraph (a)
or (b), by a ballot conducted by the Sheriff in
accordance with the regulations.
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Subdivision 2 -- Seizing and selling personal property
74. Property (seizure and sale) order, effect of
(1) In this section --
"saleable interest", in personal property, means any legal or
5 equitable interest in the property that can be disposed of
according to law.
(2) A property (seizure and sale) order made in respect of a
judgment debtor --
(a) applies to any saleable interest that the debtor has in any
10 personal property at the time when the Sheriff receives
the order; and
(b) entitles the Sheriff --
(i) to seize any such property in which the judgment
debtor has a saleable interest and to sell that
15 interest;
(ii) to seize any money of the judgment debtor;
(iii) to seize any cheque, bill of exchange, promissory
note, bond, specialty, or other security for
money, by virtue of which money is or may be
20 payable to the judgment debtor, and to deal with
it in accordance with section 79; and
(iv) to apply the proceeds of the sale, the money, and
any money received or recovered under
section 79, in accordance with section 72.
25 (3) The Sheriff's entitlement applies even if the judgment debtor's
interest in any personal property is held jointly or in common
with another or others.
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(4) If, after the Sheriff receives the order, a person acquires an
interest in any personal property to which the order applies, the
person does so subject to the Sheriff's entitlement in
subsection (2) unless, at the time of acquiring the interest --
5 (a) the person acquired it in good faith and for valuable
consideration; and
(b) the person had no notice of the fact that the Sheriff had
received the order and that it was in effect.
75. Seizing personal property, powers enabling
10 (1) Under a property (seizure and sale) order the Sheriff, using any
force and assistance that is reasonably necessary in the
circumstances, may do any or all of the following --
(a) enter any place where the Sheriff believes on reasonable
grounds there is or may be personal property that may
15 be seized under the order, or a record evidencing the title
to such property, for the purpose of searching for and
seizing it;
(b) from time to time re-enter any such place where any
such property or record is for the purpose of performing
20 the Sheriff's functions under the order and this Act in
relation to the property;
(c) seize and remove any such property or record;
(d) make or print out, and keep, a copy of any such record
and for that purpose --
25 (i) seize and remove, for no more than 7 days, any
computer or other thing on which any such
record is or may be stored;
(ii) operate the computer or other thing;
(iii) direct a person who has the custody or control of
30 any such record, computer or thing to make or
print out a copy of the record or to operate the
computer or thing;
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(e) take reasonable measures to secure or protect any such
property, record, computer or thing against damage or
unauthorised removal or interference.
(2) The powers in subsection (1)(a) and (b) --
5 (a) may be exercised at any time of the day or night in
respect of a place that is not a dwelling; and
(b) must not be exercised in respect of a dwelling without
the consent of the occupier of the dwelling or, if there is
no occupier, the owner.
10 (3) Despite subsection (2)(b), if --
(a) the consent referred to in subsection (2)(b) is
unreasonably withheld; or
(b) the Sheriff, after reasonable attempts to do so, cannot
contact the occupier or owner of the dwelling,
15 the Sheriff may exercise the powers in subsection (1)(a) and (b)
without that consent, at any time between 9 a.m. and 5 p.m.
(4) A person who disobeys a direction given under
subsection (1)(d)(iii) commits an offence.
Penalty: Imprisonment for 12 months.
20 76. Property that cannot be seized and sold
The following personal property of a judgment debtor must not
be seized or sold under a property (seizure and sale) order --
(a) property that the judgment debtor holds in trust for
another person and in which the judgment debtor does
25 not have a beneficial interest;
(b) wearing apparel and personal items that are of a kind
and value prescribed by the regulations;
(c) household property that is of a kind and value prescribed
by the regulations;
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(d) property that is used by the judgment debtor to earn
income by personal exertion of a value that does not
exceed the amount prescribed by the regulations.
77. Seizure notice to be issued
5 (1) As soon as practicable after seizing personal property under a
property (seizure and sale) order the Sheriff must give a written
notice of seizure to the judgment debtor and, if the person who
has custody of the property when it is seized is not the judgment
debtor, to that person.
10 (2) The notice must --
(a) name the judgment debtor;
(b) state the judgment debt as at the date of the notice;
(c) describe the personal property seized;
(d) explain that the property has been seized and that unless
15 the judgment debt is paid, the property will be sold to
recover it; and
(e) contain any other information that is prescribed by the
regulations.
(3) If the Sheriff releases any personal property from seizure the
20 Sheriff must serve any person on whom a notice of seizure was
served with a notice of release.
78. Custody of seized property
(1) Until it is sold, seized personal property is to be kept in such
custody as the Sheriff decides.
25 (2) Seized personal property may be left in the custody of the
judgment debtor or another person if the debtor or person, in
writing, consents and agrees --
(a) to be responsible for its safekeeping;
(b) not to move it, or allow it to be moved, without the prior
30 consent of the Sheriff; and
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(c) not to give custody or possession of it to another person
without the prior consent of the Sheriff.
(3) If the Sheriff leaves seized personal property in the custody of
the judgment debtor or another person, the Sheriff is not to be
5 taken as having abandoned the property.
(4) If the Sheriff seizes any record relating to a business or
undertaking of the judgment debtor or another person, it must
not be retained for longer than 7 days.
(5) Subsection (4) does not apply to any cheque, bill of exchange,
10 promissory note, bond, specialty or other security for money.
79. Cheques etc., consequences of seizing
(1) If a cheque, bill of exchange, promissory note, bond, specialty,
or other security for money, is seized under a property (seizure
and sale) order, the Sheriff may receive any money payable
15 under it from the person liable to pay and may, when payment
of the money is due --
(a) demand payment; and
(b) sue the person liable to pay.
(2) For the purposes of receiving payment under any record referred
20 to in subsection (1), the Sheriff is to be taken to be the agent of
the judgment debtor.
(3) Payment to the Sheriff by the person liable to pay under such a
record discharges the person's liability to pay to the extent of
the payment.
25 Subdivision 3 -- Seizing and selling real property
80. Property (seizure and sale) order, effect of
(1) In this section --
"saleable interest", in real property, means any legal or
equitable estate or interest in the property that can be
30 disposed of according to law.
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(2) A property (seizure and sale) order made in respect of a
judgment debtor --
(a) applies to --
(i) any saleable interest that is registered under the
5 Transfer of Land Act 1893 in respect of land
under the operation of that Act and that the
debtor has at the time when the order is
registered under section 133 of that Act in
respect of the interest;
10 (ii) any saleable interest that is not registered under
the Transfer of Land Act 1893 in respect of land
under the operation of that Act and that the
debtor has at the time when the Sheriff receives
the order;
15 (iii) any saleable interest in any other real property in
the State that the debtor has at the time when the
Sheriff receives the order;
and
(b) entitles the Sheriff --
20 (i) to seize the land;
(ii) to sell the saleable interest; and
(iii) to apply the proceeds in accordance with
section 72.
(3) The Sheriff's entitlement applies even if the judgment debtor's
25 saleable interest is held jointly or in common with another or
others.
(4) Actual seizure of real property by physical occupation or other
means before any saleable interest in it is sold under a property
(seizure and sale) order is not necessary.
30 (5) A monetary judgment does not create a charge over or an
interest in any real property.
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(6) Irrespective of whether it is registered under the Transfer of
Land Act 1893 or the Registration of Deeds Act 1856, a property
(seizure and sale) order does not create a charge over or an
interest in any real property.
5 (7) Under a property (seizure and sale) order, the Sheriff must not
sell any saleable interest that is registered under the Transfer of
Land Act 1893 in respect of land under the operation of that Act
unless, at the time of the sale, the order is registered under
section 133 of that Act in respect of the interest.
10 (8) If, after the Sheriff receives a property (seizure and sale) order,
a person acquires an interest in any real property to which the
order applies, the person does so subject to the Sheriff's
entitlement in subsection (2) unless, at the time of acquiring the
interest --
15 (a) the person acquired it in good faith and for valuable
consideration;
(b) the person had no notice of the fact that the Sheriff had
received the order and that it was in effect; and
(c) the order had not been registered under the Registration
20 of Deeds Act 1856.
(9) Subsection (8) does not apply to or in relation to an interest
acquired in any saleable interest that is registered under the
Transfer of Land Act 1893 in respect of land under the operation
of that Act.
25 81. Power of entry
(1) Under a property (seizure and sale) order the Sheriff, using any
force and assistance that is reasonably necessary in the
circumstances, may enter any real property in which the
judgment debtor has a saleable interest for the purposes of
30 performing the Sheriff's functions under the order and this Act
in relation to the interest.
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(2) Without limiting subsection (1), the Sheriff may --
(a) enter the real property with any prospective purchaser of
the judgment debtor's saleable interest;
(b) conduct any sale of the interest on the property;
5 (c) exercise the powers in section 100 in respect of any
personal property situated on the real property.
(3) The powers in subsections (1) and (2) --
(a) may be exercised at any time of the day or night in
respect of a place that is not a dwelling; and
10 (b) must not be exercised in respect of a dwelling without
the consent of the occupier of the dwelling or, if there is
no occupier, the owner.
(4) Despite subsection (3)(b), if --
(a) the consent referred to in subsection (3)(b) is
15 unreasonably withheld; or
(b) the Sheriff, after reasonable attempts to do so, cannot
contact the occupier or owner of the dwelling,
the Sheriff may exercise the powers in subsections (1) and (2)
without that consent, at any time between 9 a.m. and 5 p.m.
20 82. Judgment debtor may be permitted to sell or mortgage real
property
(1) With the written consent of the judgment creditor, the Sheriff
may permit the judgment debtor to sell or mortgage the
judgment debtor's saleable interest in any real property to which
25 a property (seizure and sale) order applies.
(2) The Sheriff's permit must --
(a) be in writing;
(b) require the amount of any deposit paid in respect of any
sale of the interest to be paid to the Sheriff to be held by
30 the Sheriff as stakeholder;
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(c) state the minimum amount (including any such deposit)
that must be paid to the Sheriff out of the money
realised from any sale or mortgage of the interest;
(d) state the date on which the permit expires; and
5 (e) contain any other information that is prescribed by the
regulations.
(3) The Sheriff's permit may include any conditions that the Sheriff
considers necessary.
(4) While the Sheriff's permit is in force, the Sheriff must not sell
10 the saleable interest under the property (seizure and sale) order.
(5) If while the Sheriff's permit is in force --
(a) the judgment debtor sells or mortgages the interest;
(b) in the case of a sale, the amount of any deposit paid is
paid to the Sheriff in accordance with the permit; and
15 (c) in any case, either --
(i) an amount not less than the minimum amount
stated in the permit is paid to the Sheriff; or
(ii) with the Sheriff's consent, an amount less than
the minimum amount stated in the permit is paid
20 to the Sheriff,
then --
(d) any liability of the purchaser or mortgagee to pay the
judgment debtor the money paid to the Sheriff is
extinguished;
25 (e) the Sheriff must consent to the registration under the
Transfer of Land Act 1893 or the Registration of Deeds
Act 1856 of any documents that relate to the sale or
mortgage; and
(f) the Sheriff must apply the money received in accordance
30 with section 72 as if they were the proceeds of a sale
under the order.
page 57
Civil Judgments Enforcement Bill 2003
Part 4 Enforcing monetary judgments
Division 6 Seizing and selling a judgment debtor's property
s. 83
Subdivision 4 -- Interpleader
83. Making a claim to property
(1) A person (the "claimant"), other than the judgment debtor, who
claims --
5 (a) any legal or equitable estate or interest in any personal
property that has been seized by the Sheriff under a
property (seizure and sale) order;
(b) any legal or equitable estate or interest in any real
property in which a judgment debtor has a saleable
10 interest to which a property (seizure and sale) order
applies; or
(c) the proceeds of the sale of any such property or interest,
may make a claim to the Sheriff.
(2) The claim must --
15 (a) be in writing;
(b) describe the property or interest that is claimed;
(c) state the basis for the claim;
(d) state an address for service for the claimant; and
(e) contain any other information that is prescribed by the
20 regulations.
(3) As soon as practicable after receiving such a claim, the Sheriff
must give the judgment creditor --
(a) a copy of the claim; and
(b) a notice requiring the judgment creditor to notify the
25 Sheriff within the period that is specified in the notice
whether the claim is admitted or disputed by the
judgment creditor.
84. Judgment creditor may admit or dispute claim
(1) A judgment creditor may admit or dispute a claim made under
30 section 83.
page 58
Civil Judgments Enforcement Bill 2003
Enforcing monetary judgments Part 4
Receivers and special remedies Division 7
s. 85
(2) If a judgment creditor disputes a claim the Sheriff may apply for
relief by way of interpleader --
(a) if the claim relates to personal property, to the court that
issued the property (seizure and sale) order;
5 (b) if the claim relates to real property --
(i) to the Supreme Court if the property (seizure and
sale) order was issued by the Supreme Court;
(ii) to the District Court if the property (seizure and
sale) order was issued by the District Court or
10 the Magistrates Court.
(3) On an application made under subsection (2) to the Magistrates
Court or the District Court, that court has and may exercise the
same powers as the Supreme Court would have if the
application were made to the Supreme Court.
15 Division 7 -- Receivers and special remedies
85. Interpretation
In this Division --
"available asset", in relation to a judgment debtor, means --
(a) the judgment debtor's legal or equitable estate or
20 interest in any real or personal property; or
(b) the judgment debtor's interest in the property or
profits of a partnership of which the debtor is a
partner or in any other money that may be coming to
the judgment debtor in respect of the partnership,
25 irrespective of whether the interest is held jointly or in
common with another or others.
86. Appointing a receiver, injunctions etc.
(1) If an available asset of a judgment debtor cannot be
conveniently appropriated or realised under this Part for the
30 purposes of recovering a judgment debt, whether due to acts or
page 59
Civil Judgments Enforcement Bill 2003
Part 4 Enforcing monetary judgments
Division 7 Receivers and special remedies
s. 87
omissions of the judgment debtor or otherwise, the judgment
creditor may apply to the court for any or all of the following --
(a) an order that determines the nature and extent of the
asset;
5 (b) an order that appoints a receiver of the asset;
(c) an order that the judgment debtor or any person in
possession or control of the asset --
(i) deliver the asset to a person named in the order;
(ii) do, not do, or cease from doing, any act that
10 relates to the asset and that is specified in the
order;
(d) an order that prohibits the judgment debtor or any other
person from disposing of or otherwise dealing with the
asset;
15 (e) an order that facilitates the appropriation or realisation
of the asset.
(2) The court may make any such order, subject to section 87.
(3) The court may make any such order even if no other
proceedings have been taken to enforce the monetary judgment
20 concerned.
87. Receiver, appointment of etc.
(1) In determining whether to appoint a receiver under section 86
the court must consider at least the following --
(a) whether appointing a receiver would be an effective
25 means of realising the property;
(b) the probable cost of the receivership in relation to the
probable benefits to be derived by appointing a receiver;
(c) whether appointing a receiver would cause undue
hardship or prejudice to the judgment debtor or any
30 other person;
page 60
Civil Judgments Enforcement Bill 2003
Enforcing monetary judgments Part 4
Disobeying time for payment orders and instalment orders Division 8
s. 88
(d) the likelihood of the judgment debt being recovered by
means of any other enforcement order without realising
the available asset in question.
(2) A court must not appoint a person as a receiver unless --
5 (a) the person satisfies the qualifications, if any, prescribed
by the regulations; and
(b) the person has agreed in writing to act as receiver in
respect of the available asset in question.
(3) Unless otherwise ordered by the court, a receiver appointed by
10 the court may take into the receiver's custody and control the
available asset in respect of which the receiver is appointed.
(4) When or after appointing a receiver the court may make any
ancillary or consequential order needed to enable the receiver to
realise from the available asset sufficient money to satisfy the
15 judgment debt.
(5) Without limiting subsection (4), the court may make --
(a) any order needed to give the receiver power to take
custody or control of, manage, sell, dispose of, divert
income from, or take proceedings in relation to, the
20 available asset;
(b) any order needed as to the payment of the receiver's fees
and expenses.
Division 8 -- Disobeying time for payment orders and
instalment orders
25 88. Summons to default inquiry, request for
(1) If a time for payment order has been made in respect of a
judgment debtor and the debtor has disobeyed the order, the
judgment creditor may apply for a default inquiry to be held in
respect of the judgment debtor.
30 (2) If an instalment order has been made in respect of a judgment
debtor and the debtor, on 2 or more occasions, has not paid an
page 61
Civil Judgments Enforcement Bill 2003
Part 4 Enforcing monetary judgments
Division 8 Disobeying time for payment orders and instalment orders
s. 89
instalment in accordance with the order, the judgment creditor
may apply for a default inquiry to be held in respect of the
judgment debtor.
(3) An application made under subsection (1) or (2) must --
5 (a) if the judgment debtor is a natural person, contain his or
her name and address;
(b) if the judgment debtor is a partnership, contain the name
and address of one or more partners;
(c) if the judgment debtor is a corporation, contain the name
10 and address of one or more officers of the corporation;
(d) contain the name and address of any other person who
the judgment creditor thinks may be able to assist with
the inquiry and who should be summoned to it; and
(e) for each such person indicate whether a summons under
15 section 89(1)(a) or (b) or both is required.
(4) On receiving such an application the court must set a date for
the default inquiry and notify the judgment creditor of it.
89. Default inquiry, summons to attend
(1) In respect of each person named in an application under
20 section 88(3), or in a request made under subsection (2), the
court may issue either or both of the following, according to the
application or request --
(a) a summons to attend a default inquiry to give oral
evidence;
25 (b) a summons to attend and produce to the court, for use in
the inquiry, any record or thing that is or may relate to
the matters about which the judgment debtor may be
examined and that is detailed in the summons.
(2) During a default inquiry the judgment creditor or judgment
30 debtor may request the court to summons a person to the inquiry
to give or produce evidence.
page 62
Civil Judgments Enforcement Bill 2003
Enforcing monetary judgments Part 4
Disobeying time for payment orders and instalment orders Division 8
s. 90
(3) A summons issued under subsection (1) must be served
personally.
(4) If a person who has been summoned under subsection (1) does
not attend as ordered by the summons, the court may issue a
5 warrant to have the person arrested and brought before the
court.
(5) A person who has been summoned under subsection (1) and
who, without a reasonable excuse --
(a) does not obey the summons; or
10 (b) refuses to be sworn or answer any lawful question,
is guilty of a contempt of court.
90. Default inquiry, nature of
(1) If at a default inquiry a court is satisfied --
(a) in the case of an alleged disobedience of a time for
15 payment order -- that the judgment debtor, at the time
the judgment debt was to be paid under the order --
(i) had the means to pay the judgment debt but did
not pay it; and
(ii) did not have a reasonable excuse for not paying
20 the judgment debt;
(b) in the case of an alleged disobedience of an instalment
order -- that in the case of each of 2 or more of the
instalments that were required to be paid under the
order, the judgment debtor, at the time the instalment
25 was to be paid under the order --
(i) had the means to pay the instalment but did not
pay it; and
(ii) did not have a reasonable excuse for not paying
the instalment,
page 63
Civil Judgments Enforcement Bill 2003
Part 4 Enforcing monetary judgments
Division 8 Disobeying time for payment orders and instalment orders
s. 90
then --
(c) if the judgment debtor is a natural person -- he or she is
guilty of a contempt of court;
(d) if the judgment debtor is a partnership -- each partner is
5 guilty of a contempt of court unless he or she satisfies
the court --
(i) that the partnership's disobedience occurred
without the partner's consent or connivance; and
(ii) that the partner took all the measures to ensure
10 the partnership obeyed the order that he or she
could reasonably be expected to have taken
having regard to the partner's functions and to all
the circumstances;
(e) if the judgment debtor is a corporation, the corporation
15 is guilty of a contempt of court, and each officer of the
corporation is also guilty of a contempt of court unless
he or she satisfies the court --
(i) that the corporation's disobedience occurred
without the officer's consent or connivance; and
20 (ii) that the officer took all the measures to ensure
the corporation obeyed the order that he or she
could reasonably be expected to have taken
having regard to the officer's functions and to all
the circumstances.
25 (2) A natural person, partner, corporation or officer guilty of a
contempt under subsection (1) may be punished for it by the
court at or after the default inquiry.
(3) If under subsection (2) a court decides to imprison a person for
contempt of court, the period of imprisonment must be for a
30 period set by the court that is not longer than 40 days.
(4) If under subsection (2) a court decides to imprison a person for
contempt of court, the court may order that the order for the
person's imprisonment be suspended for such period and on
page 64
Civil Judgments Enforcement Bill 2003
Enforcing monetary judgments Part 4
Disobeying time for payment orders and instalment orders Division 8
s. 91
such terms as the court orders to enable the judgment debtor to
comply with --
(a) a new time for payment order made by the court; or
(b) the instalment order, or an amended or new instalment
5 order made by the court.
(5) If --
(a) an order for a person's imprisonment is suspended under
subsection (4); and
(b) the judgment debtor does not comply with the order
10 referred to in subsection (4)(a) or (b), as the case
requires,
the court, on the application of the judgment creditor and on
proof of the non-compliance, may issue a warrant for the arrest
of the person and for his or her imprisonment in accordance
15 with the suspended order.
(6) A punishment imposed on a person under this section for a
contempt of court does not --
(a) extinguish or reduce the judgment debt; or
(b) terminate an instalment order, unless the court orders
20 otherwise.
91. Imprisonment for default, judgment creditor's duties
If an order is made under section 90(2) for the imprisonment of
a person for a contempt of court then, whether or not it is
suspended under section 90(4), the judgment creditor must
25 immediately advise the Sheriff --
(a) if the judgment creditor receives or recovers any amount
in respect of the judgment debt and the amount; or
(b) if the judgment creditor accepts part payment of the
judgment debt in full satisfaction of the judgment debt.
30 Penalty: Imprisonment for 12 months.
page 65
Civil Judgments Enforcement Bill 2003
Part 4 Enforcing monetary judgments
Division 8 Disobeying time for payment orders and instalment orders
s. 92
92. Imprisonment for default, release from
(1) In this section --
"imprisonment order" means an order made under
section 90(2) for the imprisonment of a person for a
5 contempt of court;
"superintendent" has the meaning given by the Prisons
Act 1981 section 3(1).
(2) Whether or not the period of imprisonment stated in an
imprisonment order has expired, the person imprisoned under
10 the order must be released if --
(a) the whole of the judgment debt is paid or recovered;
(b) the judgment creditor accepts part payment of the
judgment debt in full satisfaction of the judgment debt;
or
15 (c) the judgment creditor gives the Sheriff a written request
that the person be released.
(3) The Sheriff must immediately advise the superintendent of the
prison in which a person is imprisoned on becoming aware that
the debtor should be released under subsection (2).
20 (4) If the whole or a part of the judgment debt is paid to a
superintendent he or she must immediately transmit it to the
Sheriff.
(5) The court that made an imprisonment order may order the
release of the person concerned if it considers that the person
25 ought to be released because of illness or other good reason.
(6) This section does not authorise the release of a person who by
law is required to be kept in custody in respect of another
matter.
page 66
Civil Judgments Enforcement Bill 2003
Enforcing monetary judgments Part 4
Miscellaneous Division 9
s. 93
Division 9 -- Miscellaneous
93. Judgments against objects
(1) If a court gives a monetary judgment against an object, the court
may --
5 (a) authorise its seizure and sale; and
(b) make any ancillary or consequential order needed.
(2) Subsection (1) does not limit the operation of the Admiralty
Act 1988 of the Commonwealth in relation to judgments in
matters under that Act.
page 67
Civil Judgments Enforcement Bill 2003
Part 5 Enforcing non-monetary judgments
Division 1 Judgments requiring property to be given up
s. 94
Part 5 -- Enforcing non-monetary judgments
Division 1 -- Judgments requiring property to be given up
94. Application of this Division
This Division applies if a judgment of a court requires or has the
5 effect of requiring a person to give possession of any real or
personal property to another person.
95. Property (seizure and delivery) order
(1) In order to enforce a judgment to which this Division applies, a
person entitled to the benefit of the judgment may apply to the
10 court for an order, addressed to the Sheriff, authorising the
Sheriff to seize the property concerned and deliver possession of
it to the person.
(2) The court may make such an order and may do so on terms as to
costs or otherwise.
15 (3) When or after making a property (seizure and delivery) order
the court may make any necessary ancillary or consequential
order and may do so on terms as to costs or otherwise.
(4) When or after making a property (seizure and delivery) order,
the court may make an enforcement order under Part 4 for the
20 purpose of enforcing the payment of --
(a) the enforcement costs associated with the property
(seizure and delivery) order; and
(b) the value of the property concerned, as assessed by the
court, if the property cannot be seized under the property
25 (seizure and delivery) order.
page 68
Civil Judgments Enforcement Bill 2003
Enforcing non-monetary judgments Part 5
Judgments requiring property to be given up Division 1
s. 96
96. Property (seizure and delivery) order, effect of
(1) Under a property (seizure and delivery) order the Sheriff, using
any force and assistance that is reasonably necessary in the
circumstances, may --
5 (a) if the order relates to real property --
(i) enter the property and evict from it any person
who is not lawfully entitled to be on the
property;
(ii) exercise the powers in section 100 in respect of
10 any personal property situated on the real
property;
(b) if the order relates to personal property -- enter any
place where the Sheriff reasonably suspects the property
is situated and seize the property.
15 (2) If a property (seizure and delivery) order relates to real property,
the powers in subsection (1)(a) may only be exercised between
9 a.m. and 5 p.m.
(3) If a property (seizure and delivery) order relates to personal
property, the powers in subsection (1)(b) --
20 (a) may be exercised at any time of the day or night in
respect of a place that is not a dwelling; and
(b) must not be exercised in respect of a dwelling without
the consent of the occupier of the dwelling or, if there is
no occupier, the owner.
25 (4) Despite subsection (3)(b), if --
(a) the consent referred to in subsection (3)(b) is
unreasonably withheld; or
(b) the Sheriff, after reasonable attempts to do so, cannot
contact the occupier or owner of the dwelling,
30 the Sheriff may exercise the powers in subsection (1)(b) without
that consent, at any time between 9 a.m. and 5 p.m.
page 69
Civil Judgments Enforcement Bill 2003
Part 5 Enforcing non-monetary judgments
Division 2 Other non-monetary judgments
s. 97
(5) If a person unlawfully resumes possession of real or personal
property seized from the person under a property (seizure and
delivery) order, section 98 applies as if the person had
disobeyed a judgment to which Division 2 applies.
5 Division 2 -- Other non-monetary judgments
97. Application of this Division
This Division applies if a judgment requires or has the effect of
requiring a person to not do an act, to cease doing an act, or to
do an act, other than --
10 (a) to pay money; or
(b) to give possession of any real or personal property to
another person.
98. Disobeying judgment is a contempt of court
(1) If a natural person disobeys a judgment to which this Division
15 applies the person is guilty of a contempt of court.
(2) If a partnership disobeys a judgment to which this Division
applies, each partner is guilty of a contempt of court unless he
or she satisfies the court --
(a) that the partnership's disobedience occurred without the
20 partner's consent or connivance; and
(b) that the partner took all the measures to ensure the
partnership obeyed the judgment that he or she could
reasonably be expected to have taken having regard to
the partner's functions and to all the circumstances.
25 (3) If a corporation disobeys a judgment to which this Division
applies, the corporation is guilty of a contempt of court, and
each officer of the corporation is also guilty of a contempt of
court unless he or she satisfies the court --
(a) that the corporation's disobedience occurred without the
30 officer's consent or connivance; and
(b) that the officer took all the measures to ensure the
corporation obeyed the judgment that he or she could
page 70
Civil Judgments Enforcement Bill 2003
Enforcing non-monetary judgments Part 5
Other non-monetary judgments Division 2
s. 99
reasonably be expected to have taken having regard to
the officer's functions and to all the circumstances.
(4) A person entitled to the benefit of a judgment to which this
Division applies may request the court to deal with a natural
5 person, partner, corporation or officer guilty of a contempt
under this section for the contempt.
99. Court may order act to be done at expense of obligated
person
(1) This section applies if a judgment requires or has the effect of
10 requiring a person (the "obligated person") to do an act.
(2) In order to enforce such a judgment, a person who is entitled to
the benefit of the judgment may apply to the court for an order
addressed to --
(a) the person entitled to the benefit of the judgment; or
15 (b) a person appointed by the court,
that authorises that person to do the act concerned, or as much
of it as is practicable, at the expense of the obligated person.
(3) The court may make such an order and may do so on terms as to
costs or otherwise.
20 (4) The court may make such an order whether or not proceedings
for contempt are being taken against the obligated person.
(5) When or after making such an order the court may make any
necessary ancillary or consequential order including an order
providing for the expenses of carrying out the order to be
25 determined by the court.
(6) When or after making such an order, the court may make an
enforcement order under Part 4 for the purpose of enforcing the
payment of --
(a) the enforcement costs associated with the order; and
30 (b) the expenses determined under subsection (5).
page 71
Civil Judgments Enforcement Bill 2003
Part 6 Miscellaneous enforcement provisions
s. 100
Part 6 -- Miscellaneous enforcement provisions
100. Personal property on land, powers to deal with
(1) If under section 81(2) or 96(1) the Sheriff may exercise the
powers in this section in relation to personal property situated
5 on real property, the Sheriff may, if he or she thinks fit, remove
the personal property from the real property and store it.
(2) If the owner of personal property removed and stored under
subsection (1) can be found --
(a) the property must be returned to the owner if the owner
10 pays the costs of removing and storing the property; but
(b) otherwise, the property is to be dealt with by the Sheriff
in accordance with a court's directions given under
section 104.
(3) If the owner of personal property removed and stored under
15 subsection (1) cannot be found after reasonable inquiries by the
Sheriff, the property is to be dealt with by the Sheriff in
accordance with a court's directions given under section 104.
(4) A court that gives directions in respect of such property may
give directions to enable the Sheriff to recover the costs of
20 removing and storing the property.
101. Signing of documents, court may order
(1) If the signature or seal of a person is required on a document in
order to give effect to a judgment, a party entitled to the benefit
of the judgment may apply to the court for an order that --
25 (a) orders the person to sign or seal the document; or
(b) authorises an officer of the court to apply the court's
seal instead of the person's signature or seal.
(2) A document that has a court's seal applied under such an order
has effect as if it were signed or sealed by the person concerned.
page 72
Civil Judgments Enforcement Bill 2003
Miscellaneous enforcement provisions Part 6
s. 102
102. Duration and renewal of orders and warrants
(1) Each of the following has effect for 12 months after the day on
which it is made or issued --
(a) a property (seizure and delivery) order;
5 (b) a property (seizure and sale) order;
(c) a warrant issued under section 29(4) or 89(4).
(2) A person in whose favour such an order operates may from time
to time apply to the court that made it for the order's operation
to be extended.
10 (3) The judgment creditor in proceedings in which such a warrant
was issued may from time to time apply to the court that made it
for the warrant's operation to be extended.
(4) On such an application, the court may extend the operation of
the order or warrant for a period set by the court that is not
15 longer than 12 months.
(5) An order made under subsection (4) has no effect if it is made
after the order or warrant referred to in subsection (1) has
ceased to have effect.
103. Amending and cancelling orders etc.
20 (1) If a court makes an order under this Act (the "original order"),
a person --
(a) who obtained the original order;
(b) to whom the original order is addressed;
(c) who is authorised to do anything under the original
25 order; or
(d) who is affected by, or whose property is affected by, the
original order,
may apply to the court for an order that amends or cancels the
original order.
page 73
Civil Judgments Enforcement Bill 2003
Part 6 Miscellaneous enforcement provisions
s. 104
(2) The court may make an order that amends or cancels the
original order and may do so on terms as to costs or otherwise.
(3) The person who made the application under subsection (1) must
serve the order made under subsection (2) on each of the other
5 persons referred to in subsection (1).
(4) Unless it orders otherwise, the order made under subsection (2)
has effect --
(a) if the person referred to in subsection (1)(b) or (c)
applied for it, when it is made; or
10 (b) otherwise, when it is served on that person.
104. Directions, court may give
(1) Any of the following persons may apply to a court for directions
in respect of a matter arising under or in connection with the
operation or carrying out of an order issued under this Act --
15 (a) the person who obtained the order;
(b) a person to whom the order is addressed;
(c) a person who is authorised to do anything under the
order;
(d) a person who is affected by, or whose property is
20 affected by, the order; or
(e) a person who in the opinion of the court has a sufficient
interest in the matter.
(2) Such an application must be made --
(a) if the order relates to personal property, to the court that
25 issued the order;
(b) if the order relates to real property --
(i) to the Supreme Court if the order was issued by
the Supreme Court;
(ii) to the District Court if the order was issued by
30 the District Court or the Magistrates Court.
page 74
Civil Judgments Enforcement Bill 2003
Miscellaneous enforcement provisions Part 6
s. 105
(3) On such an application, the court may --
(a) give any directions that are just; and
(b) make any order as to the payment of the costs of the
application as are just.
5 105. Irregular enforcement, courts' powers as to
If the court that made an order under Part 4 or 5 or section 101
is satisfied that an irregularity has occurred in connection with
the making or carrying out of the order, the court may make any
order needed to correct the irregularity including an order --
10 (a) that sets aside the order or an act done under the order;
(b) that requires the restitution of property or the payment
of money, compensation or damages.
page 75
Civil Judgments Enforcement Bill 2003
Part 7 Administrative matters
Division 1 Officers
s. 106
Part 7 -- Administrative matters
Division 1 -- Officers
106. Interpretation
In this Division --
5 "declared areas" means those areas of the State outside the
metropolitan region (as defined in the Metropolitan Region
Town Planning Scheme Act 1959) that the Governor
proclaims to be areas of the State where it will not be
practicable to appoint a bailiff unless section 111 applies to
10 the bailiff;
"police officer" means a person who is a member of the Police
Force;
"public servant" means a person who is employed under the
Public Sector Management Act 1994 Part 3.
15 107. Bailiffs, appointment of
(1) The Sheriff may appoint one or more fit and proper natural
persons as bailiffs.
(2) Subject to subsection (1) the Sheriff may appoint as a bailiff --
(a) a public servant, with the consent of his or her
20 employing authority under the Public Sector
Management Act 1994;
(b) a natural person who is employed by a local government
or a regional local government, with the consent of his
or her employer;
25 (c) a police officer, with the consent of the Commissioner
of Police;
(d) a natural person with whom the Sheriff has entered into
a contract for services;
page 76
Civil Judgments Enforcement Bill 2003
Administrative matters Part 7
Officers Division 1
s. 108
(e) a natural person who is employed by a person with
whom the Sheriff has entered into a contract for
services.
(3) A bailiff's appointment may be suspended or terminated for
5 misconduct in the performance of his or her functions or for any
other good reason by the Sheriff.
(4) Any act by the Sheriff under this section must be in writing.
108. Assistant bailiffs, appointment of
(1) With the prior written approval of the Sheriff, a bailiff may
10 appoint one or more natural persons who are fit and proper
persons as his or her assistant bailiffs.
(2) An assistant bailiff's appointment may be suspended or
terminated for misconduct in the performance of his or her
functions or for any other good reason by --
15 (a) the bailiff to whom he or she is an assistant bailiff; or
(b) the Sheriff.
(3) An assistant bailiff 's appointment ceases on the death or
termination of the appointment of his or her bailiff.
(4) The death or termination of the appointment of a bailiff does not
20 invalidate an act of his or her assistant bailiff committed before
the assistant became aware of the death or termination.
(5) Any act by a bailiff or the Sheriff under this section must be in
writing.
109. Sheriff may delegate to bailiffs
25 (1) The Sheriff may delegate to a bailiff, on any terms the Sheriff
thinks fit --
(a) any power or duty the Sheriff has under this Act, other
than this power to delegate and any power in
section 107; or
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Civil Judgments Enforcement Bill 2003
Part 7 Administrative matters
Division 1 Officers
s. 110
(b) the carrying out of an order that is made by a court
under this Act and addressed to the Sheriff.
(2) Such a delegation may be in general terms or as to matters
specified by the Sheriff in the delegation.
5 (3) If a delegation is made under subsection (1)(b), the delegate is
for the purposes of this Act to be taken to be the Sheriff in
relation to the carrying out of the order.
(4) The Sheriff may cancel or amend a delegation to a bailiff.
(5) A bailiff exercising or performing a power or duty that has been
10 delegated under this section, is to be taken to do so in
accordance with the terms of the delegation unless the contrary
is shown.
(6) Neither the Sheriff nor the State is liable for any act or omission
of a bailiff or an assistant bailiff (other than a bailiff, or an
15 assistant bailiff, who is a public servant or a police officer)
when exercising or performing, or purporting to exercise or
perform, a power or duty that has been delegated under this
section.
(7) Any act by the Sheriff under this section must be in writing.
20 (8) This section does not limit the Sheriff's ability to perform a
function through an officer or agent.
110. Bailiffs' functions
(1) A bailiff --
(a) may perform any power or duty of the Sheriff under this
25 Act that is delegated to him or her by the Sheriff; and
(b) is to carry out any order that is made by a court under
this Act and addressed to the Sheriff and that the Sheriff
delegates to the bailiff to carry out.
(2) A bailiff is not to carry out a function of the Sheriff other than a
30 function delegated to the bailiff by the Sheriff.
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Civil Judgments Enforcement Bill 2003
Administrative matters Part 7
Provisions about the Sheriff Division 2
s. 111
(3) A bailiff may delegate any of his or her functions to one or more
of his or her assistant bailiffs, other than this power to delegate
and any power in section 108.
111. Protection from liability
5 (1) In this section --
"protected officer" means --
(a) the Sheriff;
(b) a Deputy Sheriff; and
(c) a bailiff or an assistant bailiff within the declared
10 areas.
(2) In this section, a reference to the doing of anything includes a
reference to an omission to do anything.
(3) A civil action does not lie against a protected officer for
anything that he or she has done, in good faith, in the
15 performance or purported performance of a function under this
Act or under an order made under this Act.
(4) The Crown is also relieved of any liability that it might
otherwise have had for another person having done anything as
described in subsection (3).
20 (5) The protection given by this section applies even though the
thing done as described in subsection (3) may have been
capable of being done whether or not this Act had been enacted.
Division 2 -- Provisions about the Sheriff
112. Sheriff unable to act, court's powers
25 (1) If the Sheriff, due to a conflict of interest or any other reason, is
unable to perform any of his or her functions under an order
made under this Act, the court that made the order may appoint
another person to perform the functions.
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Civil Judgments Enforcement Bill 2003
Part 7 Administrative matters
Division 2 Provisions about the Sheriff
s. 113
(2) A person who is appointed under subsection (1) to perform any
functions has, when performing those functions, the functions
and protection that the Sheriff would have had.
113. Sheriff exempt from some fees
5 The Sheriff is exempt from paying fees under the Acts in the
Table to this section in connection with any matter arising out of
or in connection with the performance of his or her functions
under this Act.
Table
Electoral Act 1907
Road Traffic Act 1974
Western Australian Marine Act 1982
10 114. Sheriff entitled to access to some official records
To the extent that it is necessary for the performance of the
Sheriff 's functions under this Act, the Sheriff is entitled to have
access to and to make use of the records kept under --
(a) the Road Traffic Act 1974 in relation to driver's licences
15 and vehicle licences issued under that Act; or
(b) the Western Australian Marine Act 1982 in relation to
vessel licences issued under that Act.
115. Sheriff exempt from some licensing requirements
(1) The Sheriff and any delegate of the Sheriff may sell property
20 seized under an order made under this Act without holding any
licence to do so that is required under a written law.
(2) Subsection (1) does not prevent the Sheriff from engaging a
person with an appropriate licence under a written law to sell
property seized under an order made under this Act.
page 80
Civil Judgments Enforcement Bill 2003
Miscellaneous Part 8
s. 116
Part 8 -- Miscellaneous
116. Protection of person acting under sealed court order
In any civil action against a person in respect of any act done
under an order issued under this Act, a copy of the order sealed
5 with a court seal is proof of the authority of the court to issue
the order.
117. Sheriff and bailiffs to carry out orders
(1) The Sheriff, and any bailiff delegated to do so by the Sheriff,
must take action in accordance with an order issued under this
10 Act and addressed to the Sheriff as soon as practicable after
receiving the order.
(2) The Sheriff may take any reasonable action that the Sheriff
considers necessary or convenient for the purposes of
performing the Sheriff's functions under an order issued under
15 this Act.
118. Impersonating an officer, offence of
A person who by words or conduct falsely represents himself or
herself to be an enforcement officer commits an offence.
Penalty: Imprisonment for 12 months.
20 119. Regulations
(1) The Governor may make regulations prescribing any matter that
is required or permitted by this Act to be prescribed or that is
necessary or convenient for giving effect to the purposes of this
Act.
25 (2) Without limiting subsection (1) regulations may be made about
any or all of the following matters --
(a) the practice and procedure to be followed --
(i) when making a request or application;
(ii) when making or issuing an order;
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Civil Judgments Enforcement Bill 2003
Part 8 Miscellaneous
s. 120
(iii) in proceedings in a court or otherwise;
(iv) in dealing with a contempt of court committed,
under this Act;
(b) matters relating to the costs in proceedings under this
5 Act;
(c) authorising the chief executive officer from time to time
to approve the forms of applications, orders and other
documents required for the purposes of this Act.
(3) Without limiting subsection (1) regulations may empower a
10 court to issue a summons to, or a warrant for the arrest of, a
person for or in connection with proceedings under this Act and
in particular for or in connection with dealing with a person for
an alleged contempt of court committed under this Act.
(4) Regulations may provide for or prescribe the fees and other
15 amounts to be paid in respect of anything done by the Marshal
in Admiralty in or in relation to enforcing any judgment in a
matter under the Admiralty Act 1988 of the Commonwealth.
120. Fees, regulations may prescribe
(1) Without limiting section 119(1), regulations may provide for or
20 prescribe the fees to be paid in respect of or in connection with
any proceedings under this Act.
(2) Without limiting subsection (1), regulations may in respect of or
in connection with such proceedings --
(a) provide for or prescribe the fees to be paid --
25 (i) when making a request or application;
(ii) when lodging a document with a court;
(iii) for the issue of any document by a court;
(iv) for the service of any document;
(b) provide for or prescribe the allowances and expenses to
30 be paid to witnesses, interpreters and other persons who
are required to appear before a court;
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Civil Judgments Enforcement Bill 2003
Miscellaneous Part 8
s. 121
(c) provide for or prescribe the fees to be paid to an
enforcement officer in connection with the officer
carrying out an order made under this Act;
(d) require the payment of expenses incurred by an
5 enforcement officer in connection with the officer
carrying out an order made under this Act;
(e) require a deposit to be paid in anticipation of the fees or
expenses that will or may be payable;
(f) provide for the resolution of disputes about the fees or
10 expenses payable in any case and for the review of
decisions in such disputes;
(g) provide for fees to be calculated by reference to --
(i) the amount of a judgment sum or the unpaid
amount of a judgment sum;
15 (ii) the amount of a judgment debt at any time;
(iii) the value of any property that is seized, or that is
sold or delivered, under an order made under this
Act;
(iv) the amount recovered under an enforcement
20 order made under Part 4;
(v) the time spent by an enforcement officer in
connection with carrying out an order made
under this Act.
121. Rules of court
25 (1) A court referred to in section 5 may make rules of court that
provide for any matter that is required or permitted by this Act
to be the subject of rules of court or that is necessary or
convenient for giving effect to the purposes of this Act.
(2) The rules of court must not be inconsistent with any regulations
30 made under section 119.
page 83
Civil Judgments Enforcement Bill 2003
Schedule 1 Provisions about available debts
Schedule 1 -- Provisions about available debts
[s. 48]
1. Financial institution accounts in name of judgment debtor
(1) This clause does not apply to an account that is prescribed by
5 regulations as being exempt from the operation of this clause.
(2) For the purpose of determining whether money, in an account with a
financial institution, standing to the credit of the judgment debtor
alone or jointly with another or others is an available debt for the
purposes of Part 4 Division 5, the following conditions are to be
10 disregarded --
(a) a condition that a demand must be made before any money or
share is withdrawn;
(b) a condition relating to the manner in which or the place at
which any such demand is to be made;
15 (c) a condition that a passbook, receipt or other document must
be produced before any money or share is withdrawn;
(d) a condition that notice is required before any money or share
is withdrawn;
(e) a condition that any money or share must not be withdrawn
20 for any specified period;
(f) a condition prescribing a minimum amount in respect of any
withdrawal;
(g) a condition that a minimum balance must be maintained in
the account;
25 (h) a condition relating to the account prescribed by the
regulations for the purposes of this subclause.
(3) Any charge on any money, in an account with a financial institution,
standing to the credit of a judgment debtor alone or jointly with
another or others, being a charge created by the rules of the institution
30 or the law under which the institution is registered or regulated, is to
be disregarded for the purposes of a debt appropriation order.
(4) Subclause (3) does not affect the rights of a financial institution to set
off or appropriate the whole or a part of an amount standing to the
credit of a judgment debtor alone or jointly with another or others.
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Civil Judgments Enforcement Bill 2003
Provisions about available debts Schedule 1
(5) So much of the money standing to the credit of the judgment debtor
alone or jointly with another or others in an account with a financial
institution of which the judgment debtor is a member as is the
minimum amount that must be maintained in the account in order that
5 the judgment debtor retains the membership is not an available debt.
2. Debts owed to judgment debtor and others jointly
(1) For the purpose of determining a judgment debtor's interest in an
available debt that is or will be or may be owed to the judgment
debtor jointly with another or others (the "joint owners"), each joint
10 owner is to be presumed to have an equal interest in the debt.
(2) The presumption that joint owners have an equal interest in an
available debt may be rebutted by the judgment creditor, the judgment
debtor or another joint owner.
(3) If, on an application by a person referred to in subclause (2), a court is
15 satisfied that the interests of the joint owners are not equal, the court
may by order decide the extent of the judgment debtor's interest in the
available debt.
3. Available debts, court may exempt certain portions
(1) If an available debt is money payable for the use of property owned
20 by the judgment debtor alone or jointly with another or others, the
court by order may exempt from payment under a debt appropriation
order that applies to the debt so much of the debt as is required by the
judgment debtor to keep or maintain the property.
(2) If an available debt is money payable under an agreement with the
25 judgment debtor, the court by order may exempt from payment under
a debt appropriation order that applies to the debt so much of the debt
as is required by the judgment debtor to perform the agreement.
(3) The court may exempt from payment under a debt appropriation order
that applies to an available debt so much of the debt as is required by
30 the judgment debtor to meet his or her necessary living expenses,
including those of his or her dependents.
page 85
Civil Judgments Enforcement Bill 2003
Schedule 1 Provisions about available debts
4. Debts payable on conditions
(1) If --
(a) the payment of an available debt to a judgment debtor
depends on the judgment debtor fulfilling a condition;
5 (b) a debt appropriation order applies to the available debt; and
(c) the condition will unreasonably prevent or delay payment of
the debt by the third person to the judgment creditor under the
order,
the court may by order --
10 (d) require the third person to disregard the condition; or
(e) specify some other means of fulfilling the condition.
(2) An order must not be made under subclause (1) that has the effect of
requiring the third person to make a payment to the judgment creditor
before the earliest time that the third person could have been required
15 to make the payment to the judgment debtor under the terms of the
third person's obligation to the judgment debtor.
page 86
Civil Judgments Enforcement Bill 2003
Defined Terms
Defined Terms
[This is a list of terms defined and the provisions where they are defined.
The list is not part of the law.]
Defined Term Provision(s)
account .......................................................................................................... 45
appropriated debt............................................................................................ 45
assistant bailiff ................................................................................................. 3
available asset ................................................................................................ 85
available debt ............................................................................................. 3, 46
bailiff ............................................................................................................... 3
claimant .....................................................................................................83(1)
corporation....................................................................................................... 3
court ................................................................................................................ 3
debt appropriation order ................................................................................... 3
declared areas............................................................................................... 106
default inquiry.................................................................................................. 3
Deputy Sheriff.................................................................................................. 3
dwelling........................................................................................................... 3
earnings ....................................................................................................... 3, 4
earnings appropriation order ............................................................................. 3
enforcement costs............................................................................................. 3
enforcement officer .......................................................................................... 3
enforcement order .......................................................................................... 17
financial institution......................................................................................... 45
imprisonment order ....................................................................................92(1)
instalment order ............................................................................................... 3
interest .......................................................................................................63(1)
interpleader proceedings................................................................................... 3
joint owners ................................................................................ Sch. 1, cl. 2(1)
judgment .......................................................................................................... 3
judgment creditor ............................................................................................. 3
judgment debt .................................................................................................. 3
judgment debtor ............................................................................................... 3
judgment sum................................................................................................... 3
lawyer ........................................................................................................30(1)
means inquiry................................................................................................... 3
mobile home .................................................................................................... 3
monetary judgment........................................................................................... 3
net earnings.................................................................................................... 34
obligated person .........................................................................................99(1)
officer .............................................................................................................. 3
original order ...........................................................................................103(1)
partnership ....................................................................................................... 3
page 87
Civil Judgments Enforcement Bill 2003
Defined Terms
personal property.............................................................................................. 3
place ................................................................................................................ 3
police officer ................................................................................................ 106
proceeds.....................................................................................................72(1)
property (seizure and delivery) order ................................................................ 3
property (seizure and sale) order ....................................................................... 3
protected officer .......................................................................................111(1)
public authority ..........................................................................................63(1)
public servant............................................................................................... 106
real property..................................................................................................... 3
record............................................................................................................... 3
saleable interest ............................................................................3, 74(1), 80(1)
Sheriff.............................................................................................................. 3
superintendent ............................................................................................92(1)
suspension order............................................................................................... 3
third party interest ......................................................................................71(1)
third person .............................................................................................. 34, 45
time for payment order ..................................................................................... 3
vehicle ............................................................................................................. 3
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