A number of enforcement actions for debt and property are available. They may be used in any order and number of times, within the statutory limit, until the judgment is satisfied.
Usual enforcement actions for debt and property are as follows.
Oral examination
The debtor is required to appear before the court to answer questions on oath about his financial circumstances (income, assets and expenses) and provide copies of documents in support. This is useful where the debtor is thought to be concealing assets.
Instalment order
A debtor may apply for an instalment order to pay off the judgment order by payments of fixed amounts at fixed intervals. As long as he complies with the order, no other methods of enforcement are permissible.
Instalment agreement
Both creditor and debtor can agree to a debt being paid off in instalments.
Attachment of earnings
This is an order requiring the debtor's employer to deduct instalments from the debtor's wages and forward those monies to the creditor.
Attachment of debt (garnishee order)
If the debtor is owed money by a third party, the creditor may apply to the court for an order to compel the third party to pay those monies directly to the creditor.
One of the warrants of execution
Two types of warrant of execution are available in the Magistrates' Court, each valid for a year from the date of issue and which may be extended. They are:
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Warrant to Seize Property: Order 69
To enforce a judgment for the payment of money, other than money paid into court. This directs the sheriff to take and sell the property of the person bound by the judgment.
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Warrant of Delivery: rule 68.12
To enforce a judgment for the delivery of goods or for the payment of their assessed value. This directs the sheriff to cause the subject goods to be delivered to the plaintiff or, if the sheriff cannot do this, to levy the property of the person bound for the assessed value of the goods.
Enforcement of judgments affecting land must be conducted through the Supreme Court.
Note that the Supreme Court rules, practice and procedure which apply to or are adopted by the sheriff in the execution of warrants of execution apply, modified as necessary, to the execution of warrants to seize property and warrants of delivery: rule 68.10.
In Victoria The Sheriff Act, effective 1 October 2009, gives sheriffs powers to:
- Arrest someone and bring them before a court;
- Restrain someone who resists lawful arrest;
- Serve documents such as court documents and warrants;
- Seize, sell and deal with some kinds of property; and
- Require someone to give his or her name and address.
A sheriff also has the power to:
- Enter property using as much force as is reasonably necessary to carry out civil and criminal warrants;
- Require government agencies, such as Vic Roads or the Rental Bond Board, to provide information about someone’s address;
- Request information about a person's address from Victoria Police; and
- Verify whether a warrant exists by referring to an electronic database.
A sheriff may only enter a residential property between 9 am and 5 pm, and reasonable force to enter can only be used after:
- Permission to enter has been requested and refused without a good reason;
- The owner cannot be located.
A sheriff now has the power to recover reasonable costs incurred as part of the execution of the warrants. For example, the costs of:
- Getting a locksmith to assist in using reasonable force to enter;
- Removal fees for items seized for sale; and
- The auction of seized property.
The offences that relate to the office of a sheriff have been simplified and consolidated into one law. These offences include:
- A person failing to comply with a direction from a sheriff;
- Assaulting a sheriff;
- Resisting the execution of a warrant;
- Attempting to escape from lawful custody of a sheriff; and
- Attempting to take back property that has been seized.
The maximum penalty for any of these offences is a six-month jail term.
This information is current as of 2.2.12