Enforcement proceedings in the Magistrates Court: Information for debtors

If a judgment (or money order) given by the Queensland Civil and Administrative Tribunal (QCAT) or by a Queensland court requires you (the enforcement debtor) to pay an amount of money to another party (the enforcement creditor), and you have not paid this amount, then the enforcement creditor can start proceedings in court to require you to pay.

These proceedings are called ‘enforcement proceedings’, and are allowed under the Chapter 19 of the Uniform Civil Procedure Rules 1999 (Qld) (the UCPR). A reference to a ‘rule’ in this factsheet is a reference to one of the rules in the UCPR.

This factsheet outlines the steps involved in enforcement proceedings in the Magistrates Court, and will explain your rights and obligations in the proceedings as the enforcement debtor. This process will differ if the enforcement debtor is a company or partnership, and not an individual.

Time limits

An enforcement creditor can start enforcement proceedings at any time within 6 years after the date of the judgment that is being enforced. If the enforcement creditor wants to start enforcement proceedings outside of this time limit, they need the court’s permission (rule 799).

What if you disagree with the original judgment?

A judgment of a Queensland court or QCAT is final and binding. If you do not agree with the judgment, then you may be able to:

1. appeal the judgment, if it is a judgment that was made on the merits of the case and you are within appeal time limits;
2. apply to the court to have the judgment set aside, if it was a default judgment (because you failed to file a notice of intention to defend) or a summary judgment (because you filed a defence but the court was persuaded that you had no real defence to the claim); or
3. apply for the enforcement proceedings to be put on hold (‘stayed’) while you take other steps, for example to appeal the judgment, or apply to have it set aside.

For more information about appealing a judgment, see our factsheets, Appealing a QCAT decision, Appeals in the District Court of Queensland, and Appeals in the Queensland Court of Appeal – how to bring an appeal. For more information about applying to set aside a default judgment or a summary judgment, see our factsheet, Default and summary judgments.

It is important that you obtain some legal advice if you think you are not liable for a debt. See a community legal centre near you for advice as soon as possible, because you need a good case to appeal or set aside a judgment.

Unless you are successful with one or more of the above steps to challenge a judgment, you must comply with all of your obligations in proceedings to enforce that judgment.

What are the steps in enforcement proceedings?

There are usually four steps that the enforcement creditor can take to require you to pay the amount owing. These are:

- - Step 1: Send you a letter of demand for payment of the amount owing;
  - Step 2: Send you a notice to complete a Form 71 statement of financial position (a Form 71);
  - Step 3: Apply for an enforcement hearing to get information about your financial position; and
  - Step 4: Apply for an enforcement warrant that requires you to pay the amount owing.

Step 1: Letter of demand

The enforcement creditor might send you a letter of demand before starting enforcement proceedings. The letter will usually require that you pay the amount owing in full by a particular date.

The enforcement creditor does not have to take this step.

Step 2: Notice to complete a Form 71

The enforcement creditor might want more information about your financial position before applying for an enforcement warrant (see step 4 below for more information about enforcement warrants). If this is the case, then the first step is for the enforcement creditor to give you a notice requiring you to complete a Form 71 (rule 807).

The Form 71 asks for details about your employment, your income, your expenses, your assets, and any other liabilities you have (such as a mortgage or other loan). It is a sworn statement, and you will be required to swear or affirm that the answers you have given are true and correct. Your signature on the Form 71 must be witnessed by a qualified witness, including a Justice of the Peace or a solicitor.

Step 3: Application for an enforcement hearing

If you do not complete and return the Form 71 within the time required, or if the enforcement creditor is not satisfied with the information you provide in the Form 71, then the enforcement creditor can apply to the court for an enforcement hearing (rule 808).

An enforcement hearing requires you to attend court so that the enforcement creditor can ask you questions about your financial situation and your ability to pay the judgment debt.

At least 14 days before the date of the enforcement hearing, you will be served with a document requiring you to attend the hearing (an Enforcement Hearing Summons) (rule 809). The Enforcement Hearing Summons may require you to provide information or documents, or answer questions, at the enforcement hearing. It may also require you to complete a Form 71 and return it to the enforcement creditor at least 4 business days before the enforcement hearing (rule 808).

The court can issue a warrant for you to be arrested and brought to court if you do not attend your enforcement hearing (rule 816).

You may be in contempt of court, and you may have costs awarded against you, if you fail or refuse to:

- - attend your enforcement hearing;
  - complete the Form 71 (if required);
  - provide any required documents;
  - be sworn in to answer the enforcement creditor’s questions; or
  - answer the proper questions of the enforcement creditor at the hearing.

Step 4: Application for an enforcement warrant

The enforcement creditor can apply for an enforcement warrant even if they have not completed steps 1 to 3 above.

If you do not pay the amount owing to the enforcement creditor, then the enforcement creditor can apply for an enforcement warrant to require you to pay. They can make this application without you knowing about it. If the warrant is issued, this will be done without a formal hearing (rule 817).

There are many different types of enforcement warrants. For example, an enforcement warrant may require that:

- - some of your property be seized and sold (rule 828);
  - a debt that is owing to you be redirected to the enforcement creditor (rules 840 and 848);
  - part of your earnings be redirected to the enforcement creditor (rule 855); or
  - you pay the debt to the enforcement creditor in instalments (rule 868).

What can you do in response to enforcement proceedings?

There are some things that you can do in response to enforcement proceedings. These include:

1. Apply to put enforcement of the judgment or the enforcement warrant on hold (for a ‘stay’), including because of facts arising or discovered after the judgment was made (see rules 800 and 819, and rule 290 if the judgment is a default judgment). Whether a stay is granted is up to the court’s discretion.
2. Apply to set aside an enforcement warrant, for example because of an irregularity in the warrant (rule 819). Whether an enforcement warrant is set aside is up to the court’s discretion.
3. Apply to the court for an order allowing you to pay your debt to the enforcement creditor by instalments (rule 868). There are a number of things the court will consider in deciding whether to order that you make payment by instalments (rule 869). These include:

- whether you are employed;
- your means of paying the debt;
- whether the debt will be paid within a reasonable time;
- your necessary living expenses and those of your dependents;
- your other liabilities; and
- the public interest in enforcing money orders efficiently and quickly.

Contact LawRightApply for help

Disclaimer

The information in this resource is for general information purposes only and should not be relied on as legal advice. If you need legal advice, please contact LawRight or another lawyer. LawRight can only give advice to people who are eligible for our services.