Last updated 9 August 2016
When a court gives judgment for a debt, the amount that a court ordered the defendant to pay is immediately payable to the plaintiff.
If the defendant cannot or does not pay the money order to the plaintiff straight away, the plaintiff can come to a private arrangement with the defendant or ask a court to enforce the money order.
If the plaintiff applies to a court to enforce a money order, the defendant will usually be ordered to pay the costs of the enforcement, as well as the original debt, interest and legal costs. It is to the defendant’s financial advantage to pay the money order as soon as possible (r 797 Uniform Civil Procedure Rules 1999 (Qld) (UCP Rules)).
Whenever a defendant pays any or all of a money order or settlement payment, they should require a written receipt and retain this record of purchase.
A written receipt is a safeguard for a defendant, especially when the plaintiff is a large company dealing with many debts. If a plaintiff loses a record of the defendant’s payment, the plaintiff may take or continue proceedings to enforce the money order as if there has been no payment. In such circumstances, the defendant should at once apply to stay enforcement of the judgment and to set aside the enforcement order, using the written receipt as proof of payment.
A private agreement with the plaintiff will save enforcement costs and can be tailored to meet the resources of the defendant. However, the plaintiff who has come to an agreement with a defendant for the repayment of a money order may still take court action at any time if the debt is not paid according to that agreement. Again, it is important to obtain a written receipt for any payments made.
Payment by instalments
A defendant will often reach a private agreement with a plaintiff to pay the money order by instalments.
Payment by instalments allows the defendant to pay the debt steadily without going further into debt. The defendant pays an amount they can afford each week or fortnight.
Any agreement for payment of a judgment debt should be made in writing, outlining the amount and frequency of payments. It should be signed by both parties. When each payment is made, a written receipt should be obtained.
A money order may be enforced through the court at any time within six years after the money order was made or later if the court allows it upon an application to extend that time (r 799 UCP Rules).
The court may make an order for the payment of the money order by instalments, either on its own initiative or on the application of either party.
Before enforcement of a money order, the plaintiff (or enforcement creditor) may apply for an enforcement hearing to obtain information to assist the enforcement of the money order against the defendant (or enforcement debtor) (ch 19 pt 2 UCP Rules). If it is established at the enforcement hearing that the enforcement debtor is unable to pay the money order, or any instalment of it, because of sickness or other sufficient cause, the enforcement debtor can apply to the court to suspend the enforcement of the money order.
At the time a court makes a money order or some time thereafter, an enforcement creditor can apply for an enforcement hearing of the enforcement debtor by filing and serving an enforcement hearing summons. At an enforcement hearing, the enforcement debtor must answer questions in court about the property or means available to them to satisfy the money order. The court may also order the enforcement debtor to produce any books, deeds, papers or other documents that will show the enforcement debtor’s financial position.
The enforcement hearing summons must be served or posted to the enforcement debtor. If the enforcement hearing is scheduled to occur outside the enforcement debtor’s home court district, the enforcement debtor must also be given reasonable expenses to pay for the transport of the enforcement debtor and any documents to the court. Staff at the court registries will be able to advise whether the enforcement hearing is outside the enforcement debtor’s home district.
Enforcement debtors summoned to court for an enforcement hearing should attend with any documents regarding their financial affairs referred to in the enforcement hearing summons. The enforcement debtor should have a workable proposal for paying off the money order by instalments. The enforcement creditor and registrar of the court will generally accept a repayment scheme if it is reasonable. Costs of the enforcement hearing are added to the total amount of the money order.
An enforcement hearing summons may require an enforcement debtor to complete a sworn statement of their financial position. The blank form should be attached to the enforcement summons but can also be obtained from court registry staff. If the enforcement debtor receives regular payments, such as wages or social security benefits, they must give details of receipt of the last four payments and details of the account the payments were paid into. The enforcement debtor should bring to the enforcement hearing any documents in support of the information contained in the statement of financial position.
The enforcement debtor should return the completed statement of financial position to the enforcement creditor within 14 days of receiving it and before the enforcement hearing. If the enforcement creditor is satisfied with the information provided in the statement of financial position, the enforcement creditor may give written notice to the court and to the enforcement debtor that the enforcement hearing is not required. The enforcement creditor will then use the information contained in the statement of financial position when deciding how to enforce the money order.
If the enforcement hearing is not cancelled, and the enforcement debtor fails to attend the court for an enforcement hearing without a reasonable excuse, the court may issue a warrant for arrest of the enforcement debtor. If the enforcement debtor attends but refuses without lawful excuse to answer questions considered proper by the court, the court may find a contempt of court and may order a warrant issue to compel the debtor to give answers before the court.