Civil Trials Bench Book — Enforcement of judgments

The enforcement of judgments or orders is dealt with in Pt 8 (ss 102–138) of the CPA. Section 103 provides that subject to that Part, the procedure for enforcing a judgment or order of the court is to be as prescribed by the rules of court. The relevant rules are set out in Pt 39 of the UCPR. Further, Pt 37 provides for time to pay or payment by instalments and Pt 38 provides for the examination of judgment debtors.

This chapter is not exhaustive and deals only with selected topics. For the detailed provisions and general discussion, see Ritchie’s pp 2771–2831, 8447–8612; Thomson Reuters pp 10001–12006, 55501–59006.

Nothing in Pt 8 limits the manner in which a judgment or order may be enforced, apart from the CPA. Nor does the Part limit the issue of consecutive writs for the levy of property against the same judgment debtor, or the making of consecutive garnishee orders or successive charging orders in respect of the same judgment debtor in respect of the same judgment debt: s 138(2)(a). Further, the Part does not limit the making of concurrent garnishee orders against different garnishees or consecutive garnishee orders against the same garnishee in respect of the same judgment debt.

Thus a Supreme Court judgment for payment of money may also be enforced by the appointment of a receiver or the sequestration of the judgment debtor’s property: r 40.2.

Judgments for possession of land in the Supreme or District Courts may be enforced by a writ of possession: s 104, UCPR Forms 47 and 50.

Judgments for delivery of goods may be enforced by a writ of delivery: s 105, Forms 48, 51.

Judgments for the payment of money may be enforced by:

A writ of execution against goods binds the property in the goods from the time the writ is delivered to the sheriff: s 109(1). However, an acquirer in good faith and for valuable consideration is protected unless aware of the delivery of the writ and that it remains unexecuted: s 109(2).

A writ of execution against land binds the land, as from the time the writ is delivered to the Sheriff, in the same way as a writ of execution against goods binds the property in the goods: s 112(1). However, the writ does not affect the title of an acquirer in good faith and for valuable consideration unless aware of the delivery of the writ and that it remains unexecuted: s 112(2).

In Garnock v Black (2006) 66 NSWLR 347 cited by Ritchie’s at [s 112.5]–[s 112.10] and Thomson Reuters at [s 112.20], it was held that s 112(2) protected a purchaser who, in good faith for valuable consideration and without notice, entered into a contract of purchase of the land and thus acquired an equitable interest in the land. However, by majority the High Court has recently upheld an appeal against that decision: Black v Garnock (2007) 230 CLR 438. Such an interest is not protected by s 112(2).

It should be noted that a judgment in any action does not of itself bind or affect any land: s 112(3).

The restrictions upon and procedure for the sale of land is set out in s 106(3) and rr 39.21–39.28.

Writs for the levy of property against the same judgment debtor are to be enforced by the Sheriff in the order in which they are received by the Sheriff: r 39.4, and see Ritchie’s [39.4.5]–[39.4.15] and Thomson Reuters [r 39.4.20]–[r 39.4.40].

If the Sheriff takes or intends to take possession of any disputed property, a claimant in respect of the property, or the proceeds of sale or value of the property, may give notice of the claim to the sheriff: r 43.3, Form 58.

As to what follows, see [2-3020] Sheriff’s interpleader.

Subject to the UCPR, a garnishee order operates to attach, to the extent of the amount outstanding under the judgments, all debts that are due or accruing from the garnishee to the judgment debtor at the time of service of the order: s 117.

Money held in a financial institution to the credit of the judgment debtor is taken to be a debt owed by the judgment debtor by that institution: s 117(2).

As to debts capable of being the subject of a garnishee order, see Ritchie’s [s 117.5]–[s 117.30], Thomson Reuters [s 117.40].

Subject to ss 121 and 122 and the UCPR a garnishee order operates to attach, to the extent of the amount outstanding under the judgment, any wage or salary payable by the judgment debtor by the garnishee while the order is in force: s 119(1)(a). The order ceases to have effect when the judgment is satisfied: s 119(3). An instalment order limits the amount payable: s 119(1)(b).

As to limitations as to amount, see ss 121, 122. See also r 39.35.

The amounts under one or more garnishee orders must not, in total, reduce the amount of the aggregate debt due to less than $447.70: s 118A.

As to matters which should be disclosed on an ex parte application for a garnishee order, see Fitz Jersey Pty Ltd v Atlas Construction Group Pty Ltd [2017] NSWCA 53.

A garnishee order that attaches to wages or salary binds the Crown in respect of New South Wales but not in respect of the Commonwealth: s 119(4).

The Attachment of Wages Limitation Act 1957 which provided an alternative means of deducting money from the wages of NSW government employees has been repealed.

Section 75 of the Public Service Act 1999 (Cth) governs the procedure for applying for a garnishee order against the wages or salary of a Commonwealth public servant.

Where a garnishee order relates to a debt, payment must be made within 14 days after service of the order or, if the debt falls due after that date, within 14 days after the due date: s 118.

Where a garnishee order relates to wages or salary, payment must be made within 14 days of the wage or salary falling due.

The garnishee must pay the money directly to the judgment creditor: s 123. The garnishee may, after the payment of each amount under the garnishee order, retain up to the amount prescribed to cover the garnishee’s expense: s 123(2). If sufficient funds are not available to cover the prescribed amount (currently $13.00) the garnishee may retain that amount as soon as sufficient funds become available: s 123(2A). However the above retention is not available where the garnishee order is in relation to a judgment debt the subject of an instalment order: r 39.42 and Sch 3.

A payment to the judgment creditor must be accompanied by a statement showing:

As between the garnishee and the judgment debtor, the amount attached under the garnishee order is taken, subject to any order of the court, to have been paid by the garnishee to the judgment debtor: s 123(4).

A note to the subsection gives as an example of the making of such an order that the garnishee has failed to comply with the requirements of subsection (3).

As between the judgment creditor and the judgment debtor, the amount of the payment to the judgment creditor is taken to have been paid by the judgment debtor in satisfaction, to the extent of that amount, of the judgment: s 123(5).

Thus any amount retained by the garnishee for administrative expenses does not operate to reduce the judgment debt.

If a garnishee fails to comply with a garnishee order, the judgment creditor may apply by notice of motion for judgment against the garnishee for the amount of the debt, wage or salary, or for the unpaid amount of the judgment debt (whatever is the lessor): s 124(1).

As between the garnishee and the judgment debtor payment pursuant to such a judgment counts as a payment by the garnishee to the judgment debtor: s 124(4).

The court may vary or suspend the making of payments by the judgment debtor, upon the application of the judgment debtor, at any time if satisfied that it is appropriate: s 124A.

A garnishee who believes that there is no debt or no wage or salary due or accruing may serve on the judgment creditor a statement to that effect verified by affidavit: r 39.40(1).

On an application by the judgment creditor under s 124 the court may hear and determine any question as to the liability of the garnishee and, if satisfied, give judgment against the garnishee: s 124(1).

The court may refuse to give such a judgment if it is of the opinion that such judgment should not be given: s 124(2).

The smallness of the amount outstanding and the smallness of the debt, wage or salary to be attached could be reasons for such an opinion: s 124(3).

As to the defences available to the garnishee, see Ritchie’s [s 117.10]–[s 117.30], [39.40.5], Thomson Reuters [s 117.40].

Where the garnishee claims that some person, other than the judgment debtor, may be entitled to the moneys garnisheed or have a charge or lien on, or other interest therein, the court may hear and determine that claim and give judgment, or make orders as the nature of the case requires: see Ritchie’s [39.41.5], Thomson Reuters [r 39.41.40].

In proceedings in the Supreme and District Courts, a judgment creditor may apply for a charging order by filing a notion of motion: s 106(1), r 39.44. Unless the court orders otherwise, the notice of motion may be dealt with in the absence of the parties (r 39.44(2)(a)) and need not be served: r 39.44(2)(b).

The charge can extend to property being stocks and shares in a public company, money on deposit in a financial institution being money held in the judgment debtors own right or in the name of some other person in trust for the judgment debtor, or any equitable interest in property: s 126(1).

Subject to the UCPR, a charging order operates to charge the property in favour of the judgment creditor to the extent necessary to satisfy the judgment, and to restrain the chargee from dealing with the property otherwise than in accordance with the directions of the judgment creditor: s 126(2).

A charging order takes effect when it is made: s 126(3). However the judgment creditor cannot take proceedings to take the benefit of the charge for 3 months: s 126(4).

A charging order entitles the judgment creditor, in relation to the property charged, to any relief to which the judgment creditor would have been entitled had the charge been made in the judgment creditor’s favour by the judgment debtor: s 126(5).

A chargee or other person having notice of the charge, dealing with the property otherwise then in accordance with the directions of the judgment creditor is liable to the judgment creditor to satisfy the judgment but not beyond the value of the property: s 127(1).

A purported transfer or disposal by the judgment debtor of the property charged, other than in accordance with the directions of the judgment creditor, is of no effect as against the judgment creditor: s 128.

Where the judgment was entered as the result of the filing of a costs certificate, r 39.45(b) should be considered.

In addition to other means of enforcement, a judgment for the payment of money, including into court, may be enforced by appointment of a receiver of the income of the person bound by the judgment and/or by sequestration of the property of that person: r 40.2(1).

See Ritchie’s [40.2.5]–[40.2.20] and Thomson Reuters [r 40.2.40].

A writ of sequestration may not be issued except by leave of the court: r 40.3(1). An applicant must file a notice of motion and serve the notice and any supporting affidavit personally on the person where property is sought to be sequestrated: r 40.3(2). Service may be dispensed with: r 40.3(3).

See Ritchie’s [40.3.5]–[40.3.15] and Thomson Reuters [r 40.3.40]–[r 40.3.60].

Part 40 div 2 applies to judgments of the Supreme Court or District Court and relates to matters in addition to those dealt with in Pt 8 of the CPA.

A judgment or order is not enforceable against a person by attachment or committal of the person: s 130. However, nothing in the Act or UCPR permits or otherwise affects the power of the court to attach or commit a person for contempt: s 131.

Part 40, div 2 deals with such committals and also sequestration.

Rule 40.6 applies where:

but does not apply to a judgment for the payment of money (including into court).

Where the rule applies the judgment may be enforced by one or more of the following means:

See Ritchie’s [40.6.5]–[40.6.15], Thomson Reuters [r 40.6.40]–[r 40.6.80].

A judgment is not enforceable by committal or sequestration unless a sealed copy is served personally and, if the judgment requires the person to do an act within a specified time, the sealed copy is served within that time or its extension or abridgment: r 40.7(1).

If the person is a corporation, the judgment is not enforceable by committal of an officer of the corporation or by sequestration of the property of an officer of the corporation, unless in addition to service under subrule 1 a sealed copy is served personally on the officer and, if the judgment requires the corporation to do an act within a specified time, the sealed copy is served before the time expires: r 40.7(2).

The sealed copy must set out the material nominated in r 40.7(3). Service is not necessary in the circumstances set out in r 40.7(4) and may by dispensed with by the court: r 40.7(5).

See Ritchie’s [40.7.5]–[40.7.10], Thomson Reuters [40.7.40].

If a judgment requires a person to do an act, and the person does not do the act, the court may direct that the act be done by a person appointed by the court and order the person to pay the costs.

Usually the person nominated by the court is the Registrar.

Where the court, for the purpose of security for future conduct, requires a payment into court of the ways set out in r 40.4(1), it must, by order, specify the circumstances in which money paid is to be forfeited, returned or otherwise disposed of, or specify the circumstances in which the order for the payment of money may be made.

Where the court, for the purpose of security for future conduct, requires submission by a person to an order for a payment into court in any of the ways set out in r 40.4(2), it must, by order, specify the circumstances in which the order for payment may be made and may, by order, specify the manner in which the submission is to be made.

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