In addition to money orders (orders for the payment of a sum) the District and the Supreme Courts have the power to make a range of other orders. Chapter 20 of the Uniform Civil Procedure Rules 1999 (UCPR) deals with these kinds of orders.

Enforcement

If they do not comply with the order, the rules make provision for enforcement in the following cases:

• Under rule 896 an order for the possession of land can be enforced by applying for an Enforcement Warrant for Possession (rule 915), or by bringing contempt of court proceedings (rules 898 and 917);
• Under rule 897 an order for the delivery of goods can also be enforced by applying for an Enforcement Warrant or bringing contempt proceedings, although in many cases an order for the delivery of goods can be enforced in the same way as a money order.
• Under rule 898 an order requiring someone to perform or abstain from performing an act can be enforced by bringing contempt proceedings;
• Under rule 899, an order requiring someone to do something can be enforced by allowing someone else to do that (substituted performance);
• Under rule 900, an undertaking to the court can be enforced by either bringing contempt proceedings or by seeking an order to seize the respondent’s property.

Under rules 898 and 900, orders against a corporation can be enforced by bringing contempt proceedings against an officer of the corporation.

Enforcement warrants

Rule 906 of the UCPR sets out the general rules about obtaining an enforcement warrant. To obtain an enforcement warrant you need to complete:

• an application (Form 9);
• a draft of the warrant you want the court to issue (Form 85, 86 or 87), and
• an affidavit that verifies that the respondent has been served with a copy of the order and has not complied with the order (Form 46).

Forms can be accessed here.

Rule 908 contains the requirements of an enforcement warrant:

• the name of the person required to comply (rule 908(1));
• the date that the warrant expires (no more than a year) (rule 908(2));
• what the warrant authorises (rule 908(3));
• the amount recoverable under the warrant (rule 908(4)), including the amounts from any earlier unsatisfied warrants (rule 908(2)(a)); and
• the costs of enforcement (and any interest on these costs) (rule 908(2)(b) and (2)(c)).

You can apply to renew an enforcement warrant under rule 909.

There are special rules that apply for enforcement of a warrant for possession of land under rules 913, 914 and 915:

• The order to be enforced must have been served on the respondent at least seven days previously (rule 913(1)); and
• If the land is subject to a tenancy, the leave of the court is required prior to enforcement (rule 913(2)); and
• A supporting affidavit must state whether or not to the applicants’ knowledge there are other people in occupation of the property and also verify that the applicant has served the respondent and whether or not the court’s leave for any enforcement has been obtained (rule 914).

Substituted performance

Under rule 899, the court can authorise someone else to perform an order.

This type of order can be used where a person is required to sign a document (e.g. a land transfer, mortgage, contract, appointment of an agent).

To seek this type of enforcement you need to file:

• A Form 9 Application. In most cases you will ask that the court authorise a Registrar or Deputy Registrar of the court to sign the relevant document; and
• An Affidavit (Form 46), setting out the steps that you have taken to have the order enforced and explaining that the order has not been complied with.

You will then need to serve a copy of the application on the respondent. You should prepare an affidavit of service for the court hearing.

Finally, you will need to attend a hearing before a judge. The other party may also turn up to oppose the making of the order.

Contempt of court

Punishing for contempt (which can include a fine or imprisonment) is arguably the most serious step that a civil court can take. The court has the power to punish certain contempt on its own motion. Under rule 925, a party can also bring an application alleging contempt of court.

Punishment for contempt is reserved for only the most deliberate breaches of a court order.

First, before applying for a contempt order, you should carefully read through the court order that has not been performed. Is the order clear? Can you identify a deliberate breach of the court order?

Before proceeding it is advisable to write to the other party, identifying the breaches of the order, requesting they comply with the order and giving them time to take steps to comply with the order.

Contempt of court requires a deliberate continuing refusal to disobey a court order. Non compliance with an order that was not deliberate, was the result of a misunderstanding, and that can be (and preferably has been) rectified by a respondent, is less likely to be punished as contempt of court: GND Developments Pty Ltd (in liq), Moloney & Geroff v DA Luttrell Nominees Pty Ltd & Ors [1998] QSC 159 and Booth v Yardley [2008] QPEC 5.

Requirements

Rule 904 sets out the prerequisites for an application for contempt of court:

• The respondent must have been personally served with the order (rule 904(1)(a)); and
• If the order requires the respondent to do something within a particular time, the respondent must be served with the order in a reasonable time to allow the respondent to comply with the order (rule 904(1)(b)).

However, personal service is not necessary if the respondent was actually present in court when the order was made (rule 904(2)(a)), or the respondent received some other reasonable notice of the order before the time to comply with the order expired (rule 904(2)(b)).

Under rule 926 of the UCPR, to bring an application for contempt of court:

• The application must clearly identify the alleged contempt; and
• The respondent must be personally served with a copy of the application and the supporting affidavits.

You can use a Form 9 Application to apply for a contempt order, or you can pay the court’s filing fee and file an Originating Application (UCPR rule 926(2)).

Once you have served the respondent, you should prepare an Affidavit of Service (Form 46) and attend the hearing.

At the hearing, you will need to argue that the respondent’s breach of the order is so serious to justify punishment for contempt.

A reference to “the Rules” is a reference to the Uniform Civil Procedure Rules 1999 (Qld).

The steps to enforce a court’s monetary order are:

• • Step 1 – write a letter to the enforcement debtor
  • Step 2 – consider the financial situation of the enforcement debtor and, if necessary, apply for an enforcement hearing
  • Step 3 – apply for an enforcement warrant

Time limits

You may enforce a judgment for a monetary sum at any time within six years from the date of the decision. If you do not enforce the decision within this six year time frame you may lose the right to do so. You can apply to the court for an extension of this first six year period for a further six years, however, the court may not necessarily grant the extension of time.

Step 1 – write a letter to the enforcement debtor

The first step in an enforcement process is usually to write a ‘letter of demand’ to the enforcement debtor; advising of the date of the decision and the amount owing, and requesting that the amount be paid by a reasonable date (e.g. 7 days or 14 days etc). You do not necessarily have to take this step but it can save you the time and cost of taking other enforcement steps, and sometimes the enforcement debtor will make a payment.

You should attach a copy of the court decision to the letter and provide your bank account details, or the name you wish a cheque to be made out to, so that the enforcement debtor may pay you the amount owing.

If the enforcement debtor does not pay you within the time specified, you should consider commencing enforcement proceedings.

Enforcement proceedings can either be conducted in the same court that made the order, or if the size of the costs order that you have falls within the monetary jurisdiction of a lower court, then you can register the judgment in that lower court (rule 802). The Magistrates Court deals with matters of less than $150,000, and the District Court deals with matters between $150,000 – $750,000. The Supreme Court deals with matters greater than $750,000.

Step 2 – consider the financial situation of the enforcement debtor and, if necessary, apply for an enforcement hearing

It will only be worthwhile pursuing enforcement proceedings if the enforcement debtor has access to money or assets (which may be sold) to be able to pay you the amount owed.

You will need to consider what you know about the enforcement debtor’s financial situation. For example, you may know that the enforcement debtor owns a property, works for a particular employer or has money owing to them from a third party. If you do not know anything about the enforcement debtor’s financial situation you will need to apply for an enforcement hearing to obtain this information.

Either way, you should send the enforcement debtor a letter enclosing a statement of financial position (form 71). Ask the enforcement debtor to complete this form and return it to you within 14 days. You must send a statement of financial position before you apply for an enforcement hearing.

If the enforcement debtor pays you the amount you are owed in response to this letter, you will not need to commence enforcement proceedings and the matter will be over.

If the enforcement debtor returns the statement of financial position to you with sufficient information, you can then proceed to apply for an enforcement warrant. See step 3 below.

If the enforcement debtor does not respond to you within 14 days or does not provide sufficient information, then you will need to apply for an order that the enforcement debtor attend an enforcement hearing. An enforcement hearing is an oral examination by the court of the enforcement debtor about their financial position.

Applying for an enforcement hearing

To apply for an enforcement hearing, you will need to file the following three documents at the court where you registered the decision.

1. Court Form 9 – Application. This document is for you to ask the court for an order that:
   • the enforcement debtor to be summoned to an enforcement hearing; and
   • the enforcement debtor provide you with documents relating to their finances, e.g. documents about assets, income, bank accounts, or other documents which may demonstrate their ability to pay you the amount you are owed.
2. Court Form 46 – Affidavit. This document is for you to swear or affirm:
   • the amount you are owed and the steps you have taken to recover this amount;
   • whether you have received a completed statement of financial position;
   • if you have received a complete statement of financial position, why you are not satisfied with the information in the statement; and
   • an offer to pay conduct money for the enforcement debtor’s attendance at the hearing (if relevant).
3. Court Form 70 – enforcement hearing summons. This document is for you to list what documents you want the enforcement debtor to provide at the hearing (which you should have already referred to in Form 9).

The court will set a date for the enforcement hearing and issue the summons, which must be served by you on the enforcement debtor at least 14 days before the date of the hearing. The summons may instruct the enforcement debtor to provide you with a completed Statement of Financial Position (Form 71) before the hearing (Rule 808(7)). If this is the case, you will need to serve a blank Form 71 with the summons.

If the enforcement debtor returns the Statement of Financial Position to you with sufficient information, you should notify the court and the enforcement debtor that you no longer require the enforcement hearing and apply for an enforcement warrant (see step 3 below).

If the enforcement debtor does not return the Statement of Financial Position to you before the hearing, the enforcement hearing will proceed. The enforcement debtor will be required to attend court to answer questions about their finances and bring along any documents listed in the enforcement hearing summons. You will also need to attend the hearing.

The enforcement hearing may prompt the enforcement debtor to negotiate payment arrangements with the enforcement creditor (you) to resolve the dispute. If the enforcement debtor does not offer to negotiate, the court may order an enforcement warrant.

If the enforcement debtor fails to attend the hearing, the court may issue a warrant for their arrest.

Step 3 – apply for an enforcement warrant

Once you have obtained information about the enforcement debtor’s financial position (either through your own informal searches or through the enforcement hearing process) you can apply to the court for an enforcement warrant.

Types of enforcement warrants

The types of enforcement warrants that you can apply for are listed below:

• Enforcement warrant for redirection of earnings under rule 855. This type of warrant directs the enforcement debtor’s employer to pay part of his/her wages to you whenever they get paid. To apply for this type of warrant, details of the source of the enforcement debtor’s earnings, for example their employer, are required.
• Enforcement warrant for redirection of a debt under rule 840. This type of warrant directs a third party who currently owes a debt to the enforcement debtor to pay that money to you instead. To apply for this type of warrant you will need to know the details of the third party and the amount they owe the enforcement debtor.
• Enforcement warrant for regular redirections from a financial institution under rule 848. This type of warrant directs a financial institution, e.g. a bank, to redirect regular payments received by the enforcement debtor to you. To apply for this type of warrant you will need to know details of any payments regularly made and the enforcement debtor’s account details.
• Enforcement warrant for seizure and sale of property under rule 828. This type of warrant directs the enforcement officer, who is the sheriff or bailiff of the court, to seize and sell property belonging to the enforcement debtor. There are limits on the type of property which may be seized and sold. To apply for this type of warrant, you will need to know details of the enforcement debtor’s property which may be seized and sold.

You will need to consider which enforcement warrant is most appropriate in your case and apply for that specific warrant.

Applying for an enforcement warrant

To apply for an enforcement warrant, you will need to file the following three documents at the court where you registered the decision.

1. Form 9 – Application. This document is for you to ask the court to issue an enforcement warrant.
2. Form 74 – Statement supporting application for enforcement warrant. This document is for you to set out details about the decision you are seeking to enforce, costs incurred by you in pursuing enforcement proceedings and interest claimable. You must complete this statement no more than 2 days before you file the application; and
3. Form 75 – Enforcement warrant (seizure and sale), Form 76 – Enforcement warrant (redirection of debt), Form 77 – Enforcement warrant (regular redirection) or Form 78 – Enforcement warrant (redirection of earnings). You will need to choose the correct warrant form and attach this to your application and supporting statement.

Once you have filed the documents, the registrar of the court will decide whether to issue an enforcement warrant

Serving an enforcement warrant

If the registrar issues an enforcement warrant, the warrant will need to be served on the enforcement debtor and any person required to take action under the warrant, such as the enforcement debtor’s employer (if the enforcement debtor is an individual) or financial institution. There are different rules about how the different types of warrants must be served.

You may choose to engage a “bailiff” to serve the warrant. A warrant for the seizure and sale property must be executed by a bailiff. If you engage a bailiff, you will need to pay a deposit of money as security for any costs the bailiff may incur in executing the warrant. Bailiffs can be employed by contacting the bailiff’s office at the courthouse.

This factsheet outlines the steps required to enforce a decision of the Federal Circuit Court (FCC) that requires a person or company to pay a fixed amount of money. It does not apply to the enforcement of orders made in family law proceedings.

In this factsheet, “enforcement creditor” means the person or company who is owed money and is taking enforcement action and “enforcement debtor” means the person or company who owes the money and is the subject of enforcement action.

A reference to “the Rules” is a reference to the Uniform Civil Procedure Rules 1999 (Qld). A reference to a “Form” is a reference to the UCPR Forms (found here).

For matters decided in Queensland, the FCC has adopted the Rules for the purposes of enforcing monetary decisions – see section 78 of the Federal Circuit Court Act 1999 (Cth) and rule 29.07 of the Federal Circuit Court Rules 2001. Therefore, when you lodge enforcement proceedings in the FCC against an enforcement debtor, you will need to use the forms as required by the Rules. As these forms are normally for use in the Queensland Courts, you will need to change any reference to the Queensland Courts in the forms (e.g. the title) to say ‘Federal Circuit Court of Australia’.

The steps to enforce a FCC decision are:

1. 1. 1. write a letter to the enforcement debtor
      2. consider the financial situation of the enforcement debtor and, if necessary, apply for an enforcement hearing
      3. apply for an enforcement warrant

Time limits

You may enforce a judgment for a monetary sum at any time within six years from the date of the decision. If you do not enforce the decision within this six year time frame you may lose the right to do so. You can apply to the court for an extension of this first six year period for a further six years, however, the court may not necessarily grant the extension of time.

Step 1 – write a letter to the enforcement debtor

The first step in an enforcement process is usually to write a “letter of demand” to the enforcement debtor; advising of the date of the decision and the amount owing, and requesting that the amount be paid by a reasonable date (e.g. 14 days or 21 days etc).

You should attach a copy of the decision to the letter and provide your bank account details, or the name you wish a cheque to be made out to, so that the enforcement debtor may pay you the amount owing.

If the enforcement debtor does not pay you within the time specified, you should consider commencing enforcement proceedings.

Step 2 – consider the financial situation of the enforcement debtor and, if necessary, apply for an enforcement hearing

It will only be worthwhile pursuing enforcement proceedings if the enforcement debtor has access to money or assets (which may be sold) to be able to pay you the amount owed.

You will need to consider what you know about the enforcement debtor’s financial situation. For example, you may know that the enforcement debtor owns a property, works for a particular employer or has money owing to them from a third party. If you do not know anything about the enforcement debtor’s financial situation you will need to apply for an enforcement hearing to obtain this information.

Either way, you should send the enforcement debtor a letter enclosing a Statement of Financial Position (Form 71 if the enforcement debtor is an individual or Form 71A if the enforcement debtor is a company). Ask the enforcement debtor to complete this form and return it to you within 14 days.

If the enforcement debtor pays you the amount you are owed in response to this letter, you will not need to commence enforcement proceedings and the matter will be over.

If the enforcement debtor returns the Statement of Financial Position to you with sufficient information, you can then proceed to apply for an enforcement warrant. See step 3 below.

If the enforcement debtor does not respond to you within 14 days or does not provide sufficient information, then you will need to apply for an order that the enforcement debtor attend an enforcement hearing. An enforcement hearing is an oral examination by the court of the enforcement debtor about their financial position.

Applying for an enforcement hearing

To apply for an enforcement hearing, you will need to file the following three documents:

Court Form 9 – Application. This document is for you to ask the court for an order that:

• • • the enforcement debtor to be summoned to an enforcement hearing; and
    • the enforcement debtor provide you with documents relating to their finances, e.g. documents about assets, income, bank accounts, or other documents which may demonstrate their ability to pay you the amount you are owed.

Court Form 46 – Affidavit. This document is for you to swear or affirm:

• • • the amount you are owed and the steps you have taken to recover this amount;
    • whether you have received a completed statement of financial position;
    • if you have received a complete statement of financial position, why you are not satisfied with the information in the statement; and
    • an offer to pay conduct money for the enforcement debtor’s attendance at the hearing (if relevant).

Court Form 70 – enforcement hearing summons. This document is for you to list what documents you want the enforcement debtor to provide at the hearing (which you should have already referred to in Form 9).

The court will set a date for the enforcement hearing and issue the summons, which you must personally serve on the enforcement debtor at least 14 days before the date of the hearing. The summons may instruct the enforcement debtor to provide you with a completed Statement of Financial Position (Form 71 if the enforcement debtor is an individual or Form 71A if the enforcement debtor is a company) before the hearing. If this is the case, you will need to serve a blank Statement of Financial Position with the summons.

Personal service means that if the enforcement debtor is an individual, you will need to arrange for a copy of the summons to be handed to that person or, if they refuse to accept them, put down in the person’s presence with an explanation of what they are. If the enforcement debtor is a corporation, personal service requires you to go to the registered office of the corporation and to leave a copy of the documents with a person in the service of that corporation. The registered office of a corporation can be different from the company’s principal place of business. You should obtain a current company extract from the Australian Securities and Investments Commission which will show the company’s registered address. If you are not comfortable serving the summons yourself, you can ask a friend to do it or pay a fee for a bailiff or process server to serve the summons.

After the enforcement hearing summons has been served, the person who performed service should swear an affidavit of service. Once the affidavit of service is complete you will need to lodge it with the FCC.

If the enforcement debtor returns the Statement of Financial Position to you with sufficient information, you should notify the court and the enforcement debtor that you no longer require the enforcement hearing and apply for an enforcement warrant. See step 3 below.

If the enforcement debtor does not return the Statement of Financial Position to you before the hearing, the enforcement hearing will proceed. The enforcement debtor will be required to attend court to answer questions about their finances and bring along any documents listed in the enforcement hearing summons. You will also need to attend the hearing.

The enforcement hearing may prompt the enforcement debtor to negotiate payment arrangements with the enforcement creditor (you) to resolve the dispute. If the enforcement debtor does not offer to negotiate, the court may order an enforcement warrant.

If the enforcement debtor fails to attend the hearing, the court may issue a warrant for their arrest.

Step 3 – apply for an enforcement warrant

Once you have obtained information about the enforcement debtor’s financial position (either through your own informal searches or through the enforcement hearing process) you can apply to the court for an enforcement warrant.

Types of enforcement warrants

The types of enforcement warrants that you can apply for are listed below:

• • • Enforcement warrant for redirection of earnings under rule 855. This type of warrant directs the enforcement debtor’s employer to pay part of his/her wages to you whenever they get paid. To apply for this type of warrant, details of the source of the enforcement debtor’s earnings, for example their employer, are required.
    • Enforcement warrant for redirection of a debt under rule 840. This type of warrant directs a third party who currently owes a debt to the enforcement debtor to pay that money to you instead. To apply for this type of warrant you will need to know the details of the third party and the amount they owe the enforcement debtor.
    • Enforcement warrant for regular redirections from a financial institution under rule 848. This type of warrant directs a financial institution, e.g. a bank, to redirect regular payments received by the enforcement debtor to you. To apply for this type of warrant you will need to know details of any payments regularly made and the enforcement debtor’s account details.
    • Enforcement warrant for seizure and sale of property under rule 828. This type of warrant directs the enforcement officer, who is the sheriff or bailiff of the court, to seize and sell property belonging to the enforcement debtor. There are limits on the type of property which may be seized and sold. To apply for this type of warrant, you will need to know details of the enforcement debtor’s property which may be seized and sold.

You will need to consider which enforcement warrant is most appropriate in your case and apply for that specific warrant.

Applying for an enforcement warrant

To apply for an enforcement warrant, you will need to complete and lodge the following documents:

1. 1. Form 9 – Application. This document is for you to ask the court to issue an enforcement warrant.
   2. Form 74 – Statement supporting application for enforcement warrant. This document is for you to set out details about the decision you are seeking to enforce, costs incurred by you in pursuing enforcement proceedings and interest claimable. You must complete this statement no more than 2 days before you file the application; and
   3. Form 75 – Enforcement warrant (seizure and sale), Form 76 – Enforcement warrant (redirection of debt), Form 77 – Enforcement warrant (regular redirection) or Form 78 – Enforcement warrant (redirection of earnings). You will need to choose the correct warrant form and attach this to your application and supporting statement.

Once you have filed the documents, the registrar of the court will decide whether to issue the enforcement warrant.

Serving an enforcement warrant

If the registrar issues the enforcement warrant, the warrant will need to be served on the enforcement debtor and any person required to take action under the warrant, such as the enforcement debtor’s employer (if the enforcement debtor is an individual) or financial institution.

There are different rules about how the different types of warrants must be served.

You may choose to engage an officer of court to serve the warrant. A warrant for the seizure and sale property must be executed by an officer of the court. If you engage an officer of the court, you will need to pay a deposit of money as security for any costs the officer may incur in executing the warrant. This service can be engaged by contacting the Registry.