Useful Resources

Enforcing money orders

What is a money order?

In the most simple terms, its an order of a court that someone else has to pay a stipulated sum.

I can help you with enforcing such an order.

Don’t be fooled. Just because you obtain the order doesn’t mean it won’t usually be like ‘pulling your own tooth out’.

Your options for enforcing the Judgment in the Court include:

1. Extract from the debtor information regarding their financial position; or

2. Apply to the Court for the issue of one of the various types of enforcement warrant.

There is a process to follow here to compel this to happen. It’s called obtaining a statement of financial position. Talk to me today. The longer you wait, the less likely you will get your due.

If the debtor provides documents showing any assets they own, the equity in those assets, and details of any debts owed to them, this method of enforcement has achieved its purpose.

If you are not satisfied with the contents of the completed statement of financial position, or the debtor does not return one at all, we can then apply to the Court for an enforcement hearing summons order.

An enforcement hearing summons order is a Court order requiring a debtor to complete the statement of financial position, produce substantial documents regarding their financial position, and appear in Court for the purpose of being cross examined about their financial position.

It’s not pretty, I’ve seen a fellows eighty year old mother cross examined relentlessly because he used her to hide money.

If your debtor does not show up to the enforcement hearing (which is quite common), then you are able to apply to the Court to issue an enforcement hearing warrant (arrest warrant).

The arrest warrant allows the Court enforcement officer to attend at the debtor’s address (with or without the police) to arrest the debtor and force him/her to attend the hearing.

The main purpose for an enforcement hearing is to gather enough information from the debtor to be able to apply for an enforcement warrant.

Let me explain the various types of enforcement warrant is you can achieve.

The most common type of enforcement warrants that can be issued by the Court to enforce the Judgment are:

1. The enforcement hearing summons;

2. Enforcement warrants for redirection of earnings and/or debts;

3. Enforcement warrants for seizure and sale of property;

4. for a warrant for order to pay by instalments; and

5. Bankruptcy proceedings.

Let’s talk about about seizing property

Section 828 of the Uniform Civil Procedure Rules 1999 (QLD) allows for Enforcement warrants for seizure and sale of property.

To issue a such warrant, the Court will need evidence showing what property is owned by this debtor and what the equity in that property.

I can investigate that for you.

Enforcement warrants for redirection of earnings

Section 855 of the Uniform Civil Procedure Rules 1999 (QLD) allows for Enforcement warrants for redirection of earnings.

To issue a warrant for redirection of earnings the Court will need to be satisfied the enforcement debtor is employed and the enforcement debtor’s employer has been identified;

Perhaps the primary question the court will ask is whether the enforcement debtor has sufficient means of satisfying the order after deducting, the necessary living expenses of the enforcement debtor and the enforcement debtor’s dependants; and any other known liabilities of the enforcement debtor. There in lies the rub. Most people it seems, are in debt to the limit of their income! But if you don’t enquire you won’t know that.

Serving the Debtor with a Bankruptcy Notice

Before Covid19, a judgment debtor is a person owes a judgment debt of over $5,000.00 then a creditor can ask the Federal Circuit Court to declare the debtor bankrupt. The Morrison government has temporarily raised the figure to $20,000.00.

To declare the debtor bankrupt the creditor must prove to the Court that debtor has committed an act of bankruptcy.

If a debtor fails to follow the instructions in a bankruptcy notice, then the debtor has committed an act of bankruptcy, allowing you to present a creditor’s petition to the Federal Circuit Court.

Serving the Debtor with a Post-Judgment Statutory Demand

If the judgment debtor is a company you have the option to serve it with a statutory demand for payment of the debt under section 459E of the Corporations Act 2001 (Cth). If this debtor is served with a statutory demand, it has twenty one days to comply with the demand or apply to the Court for an order setting the demand aside.

If the statutory demand is not set aside and the debtor fails to comply with it, then it is presumed the debtor is insolvent for three (3) months. While the debtor is presumed to be insolvent, you may apply to wind it up on the grounds of insolvency.

What can you do when Enforcing a Judgment?

Good news! In my experience, most debtors wait until the last moment to see their lawyer, which essentially dooms most debtors.

If you engage us to serve a judgment debtor to attend an enforcement hearing and disclose its financial position, it you may be able to enforce the Judgment against it using one of the steps outlined above.

In my experience, debtors who have the ability to raise funds to pay their debts usually do so to avoid being forced into bankruptcy or being wound up.

For these reasons, I recommend typically serving the debtor with a bankruptcy notice or a statutory demand.

Enforcing Money Orders from QCAT

Decisions handed down by the Queensland Civil and Administrative Tribunal (QCAT) are enforceable same as any court order.

The Tribunal however, is however not responsible for enforcing the decision.

You must enforce the decision.

In the case of monetary orders, you must apply to the appropriate court to have your decision enforced.

The appropriate court for enforcement is determined by the courts monetary jurisdiction. The following are those jurisdictions.

1. Magistrates Court: For amounts up to and including $150,000.

2. District Court: For amounts over $150,000 and up to and including $750,000.

3. Supreme Court: For amounts above $750,000.

When applying to the court to have a decision enforced, you must produce to the court a certified copy of the QCAT decision and a an affidavit stating the amount of the decision not yet paid.