Enforcement of judgement debts in Queensland

Publications >Enforcement of judgements in Queensland

 

Enforcement warrant for seizure and sale of land

 

How do you place an enforcement warrant over a debtor’s land?

 

You need:

	A Certified Copy of Enforcement Warrant for Seizure and Sale of Property this must show the address of the property you are placing a writ over; and
	To notify the Enforcement Officer that you do not wish him to attend upon the Warrant, and that you are actually pursuing it through the Department of Natural Resources.

 

What information must you have to prepare an request to register writ/warrant of execution (Form 12)?

 

You require the following searches:

	QVAS search should be conducted to confirm the street address; and
	Current Title Search to obtain the full property description.

 

Once a Form 12 has been drafted, it must be signed by a duly authorised agent of the Plaintiff (For Example if the plaintiff is an individual than the plaintiff or if the plaintiff is a corporation a director of the company), and it can then be registered with the Department of Natural Resources.

 

What happens once the Warrant of Execution is registered with the Department of Natural Resources?

 

You may wish to proceed and actually have the property sold. You must do this within six (6) months of the Warrant of Execution been registered with the Department of Natural Resources. The Enforcement Officer is contacted and asked how much funds are required to proceed with an auction over the property. A rough estimate is generally $1,800.00 but this differs from Court to Court. The Enforcement Officer requires these funds in his or her possession before commencing. The majority of these monies are used for advertising costs and auctioneer’s fees, and are recoverable.

 

Prior to action, a kerb side valuation by a registered valuer as to the value of the property has to be provided to the Enforcement Officer at the cost of the Plaintiff. Such costs are usually recovered by the Enforcement Warrant Officer as part of the Judgment Debt.

 

How long does a Warrant of Execution remain enforceable?

 

Should you not wish to proceed to selling the property7, the Warrant of Execution remains enforceable for twelve (12) months. This means that when the Debtor wants to remove the Warrant of Execution for a sale or a refinance you can demand payment of the full amount of the debt together with your reasonable legal costs of having the Warrant of Execution removed.

 

Enforcement warrant for seizure and sale of chattels

 

What is an enforcement warrant for seizure and sale of property?

The Enforcement Officer is directed to attend and seize goods of the debtor and sell same at a Public Auction.

 

What are the problems with an Enforcement Warrant – Seizure and Sale of Property?

 

If the debtor does not own anything or if he claims that goods or vehicles are under lease or lent to him by friends and/or relatives and/or is in joint ownership with the wife, the Enforcement Officer will not seize those goods or vehicles.

 

How can you avoid this?

 

If you are aware that the debtor owns property, the Enforcement Officer should be informed of this, and the property described to him.

 

If you know the debtor owns a Motor Vehicle how can the Enforcement Officer seize the Motor Vehicle?

 

A Registration search and Encumbrance Search should be done showing that the vehicle is registered in the debtor’s name and not encumbered. You then need to direct the Enforcement Officer to seize and sell the motor vehicle.

 

Take note that the Enforcement Officer requires approximately $600.00 to $1,000.00 in funds to seize the vehicle, have it stored and arrange for its auction. These monies are paid in advance and are recoverable.

 

What if the Debtor owns a business?

 

It is often worthwhile pointing out to the Enforcement Officer that the money in the cash register is unencumbered and can be seized, they do not always remember their ability to take this action.

 

Enforcement hearing summons

 

What is an enforcement hearing summons?

 

The Enforcement Debtor is brought before the Court and is examined as to his income, expenditure assets and liabilities.

 

The details of the Enforcement Debtor are recorded on the Statement of Financial position.

Often, the Enforcement Hearing can be used as an opportunity to discuss a repayment arrangement with the Enforcement Debtor, or identify assets to be seized.

 

In relation to Enforcement Debtors who are self-employed, a method that often frightens them into paying the debt is to ascertain who their clients are that owe them money, and inform them that you intend seizing such funds direct by Enforcement warrant – Redirection of debt. The result of this is that you are attacking the debtor’s client base direct.

 

The main difficulty with the Enforcement Hearings is that Enforcement Debtors often lie under Oath.

Should the Debtor fail to appear a Warrant of Apprehension can be issued for his arrest.

 

Enforcement warrant for redirection of earnings

 

What is an enforcement warrant for re-direction of earnings?

 

It is where part of the wages of the Debtor are seized from their Employer and paid directly to the Judgment Creditor

 

What are the difficulties with an Enforcement Warrant for Re-Direction of Earnings?

 

The difficulty with this is that the debtors wages may be too minimal for an Enforcement Warrant for

 

Redirection of Earnings to be issued. If the debtor resigns or is terminated from his employment, the Enforcement Warrant for Redirection of Earnings obviously ceases.

 

To issue an Enforcement Warrant of Redirection of Earnings, you have to file a Statement of Financial Position with the Court so it can determine the amount that the Enforcement Warrant for Redirection of

Earnings will be issued for. This means that you need to conduct an Enforcement Hearing prior to filing an Enforcement Warrant for Re-Direction of Earnings.

 

Enforcement warrant for redirection of debts

 

What is an enforcement warrant for redirection of debts?

 

This is where money owing by a Third Party to a debtor may be seized. You may seize up to the amount of debt plus costs and interest. The most prevalent use is for real estate commissions, subcontractors payments and bank accounts.

 

What are the difficulties with an Enforcement Warrant for Redirection of Debts?

The difficulty with this is obtaining information of who the third party is and what is owing by the third party, but works well where you threaten a self employed person to attach his client base.

Take note though, it is only legally effective in relation to monies owing at the time of service, so if a commission is to be paid to a real estate agent when a property settles, you cannot seize the commission until the property has settled.

 

Enforcement warrant for payment of order debt by instalments

 

What is an Enforcement Warrant for payment of order debt by instalments?

 

This is where the Enforcement Debtor applies to Court for time to pay the debt (ie a repayment schedule).

Should the debtor be successful, the Enforcement of the Judgment is stayed while the debtor maintains his repayments.

 

When attending before a Magistrate on the hearing of the debtor’s application, you should examine the debtor as to his expenses, as you may be able to convince the Magistrate that the debtor can afford to make a higher regular repayment. The Court seems to apply the rule that it will only allow an installment order where the debt can be paid in approximately 2 yeas and if the Enforcement Debtor does not own any executable assets (ie unencumbered property or vehicles).

 

If the debtor is successful in obtaining an Enforcement Warrant for Payment of Order Debt by Installments, but fails to maintain the repayments, an Affidavit should be filed in Court stating this, and requesting that the Enforcement Warrant for Payment of Order Debt by Installments be removed. Once this is done, you may enforce the Judgment normally.

 

 

Greg Rostron
Partner

 

"The information contained in this article is general in nature and cannot be regarded as anything more than general comment. Readers of this article should not act on the basis of this comment without consulting one of Rostron Carlyle's legal practitioners who will consider their particular circumstances".

 

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