Last updated 3 August 2016
If a money order is unpaid, the enforcement creditor may apply to the court for an enforcement warrant for:
- seizure and sale of property
- redirection of debts
- redirection of earnings
- payment by instalments
- charging orders and stop orders (ch 19 pts 3–9 Uniform Civil Procedure Rules 1999 (Qld) (UCP Rules)).
When applying for an enforcement warrant, the enforcement creditor must swear an affidavit stating that the money order remains unpaid. This must be served or posted to the enforcement debtor.
The enforcement warrant must be enforced within one year or renewed. If more than one enforcement warrant has been issued against the enforcement debtor, the court will require the enforcement warrants to be enforced in the order that they were issued. The time and date of issue will be noted on the enforcement warrant.
Seizure and sale of property
Unless a creditor has a secured loan, a debtor’s goods or property cannot be repossessed without a court order or enforcement warrant (ch 19 pt 4 UCP Rules).
Once an enforcement warrant is issued, an enforcement creditor can seize and sell property owned by the enforcement debtor to satisfy the money order. The court’s enforcement officer decides what property to sell and in what order.
The enforcement officer must sell the property in order to promptly enforce the money order and must minimise any hardship to the enforcement debtor and others, including the enforcement debtor’s family. The enforcement officer can only sell land owned by the enforcement debtor and their principal place of residence if everything else of value owned by the enforcement debtor has been sold, or if the enforcement debtor otherwise agrees or the court otherwise orders.
If at or before the sale by the enforcement officer the enforcement debtor produces the amount owing under the money order, interest and costs as well as an amount set by the enforcement officer as security for any enforcement costs, the enforcement officer must not sell the seized property.
Sale of seized property is by public auction after advertising and as soon as possible after seizure. The sale is conducted at a place that the enforcement officer considers suitable. The sale price must be reasonable. For property worth more than $500, the enforcement officer is likely to set a reserve after obtaining a valuation. For property worth less than $500, the officer must obtain the best price possible.
If an auction is conducted but the seized property is not sold, the enforcement officer may sell the property privately for an amount that is not less than the highest bid achieved at auction or according to a court order. If the sale price exceeds the amount owing, the court registrar will refund the difference to the enforcement debtor.
Land that is jointly owned by the enforcement debtor and another person (e.g. their spouse) cannot be sold under an enforcement warrant. Only the enforcement debtor’s interest may be sold. Such sales are extremely unusual.
If the enforcement officer attempts to seize property that does not belong to the enforcement debtor:
- the enforcement debtor and/or the owner (if present) should immediately tell the enforcement officer that the goods are not owned by the enforcement debtor
- any documents or receipts showing title should be shown to the enforcement officer
- the owner should immediately apply to the court to decide who owns the goods in dispute.
Redirection of earnings and money
If an enforcement creditor who has obtained a judgment knows that money is owed to the enforcement debtor, the enforcement creditor can seek a warrant for redirection (ch 19 pt 6 UCP Rules). A warrant for redirection is an order to a person who owes money to the enforcement debtor to pay that money to the enforcement creditor instead. Before ordering the redirection of earnings and other money to satisfy a debt, a court must consider whether the amount proposed to be deducted would cause unjustifiable hardship to the enforcement debtor.
Money that can be redirected includes:
- an enforcement debtor’s wages. An enforcement debtor’s employer can be ordered to pay most of the enforcement debtor’s wages to the enforcement creditor instead of the enforcement debtor. The court will allow the enforcement debtor necessary living expenses and will provide for any known liabilities due to be paid before allowing redirection of earnings
- money held in a bank account
- rent due to be paid to the debtor
- trust moneys for which a debtor is the beneficiary
- other judgment debts owing to the debtor.
Money that cannot be redirected includes:
- money in the hands of a liquidator
- social security payments
- debts (not wages) owing by the Crown to the enforcement debtor.