VIC Conveyancing, Supreme Court Civil and Companies

“ County Court Victoria County Court Victoria - Civil practice notes ”

“ Magistrates’ Court Civil Supreme Court Civil ”

“ Anyone who is entitled to enforce a judgment for a debt or for some other matter, may, without notice to the person bound by the judgment, apply to the court under Order 67 for a Summons to Attend for Oral Examination, requiring that the person attend for examination by the court officer of a ... ”

“ The procedure in the Magistrates' Court is slightly different to that in the Supreme and County Courts. It prescribes the examination documents for the judgment debtor to complete and on which the registrar conducts the examination. In the higher jurisdictions Order 67 does not prescribe the ... ”

“ In the Magistrates' Court A deputy registrar at the closest court location to where the debtor lives conducts the examination, which is based on the questionnaire in the Examination of a Judgment Debtor form. The registrar will ask additional questions of the debtor as they consider necessary, and ... ”

“ Oral examinations are also conducted under ss 13 and 17 of the Judgment Debt Recovery Act 1984. These examinations are conducted pursuant to r 61.04 rather than Order 67. JDRA examinations are only appropriate where: ”

“ Instalment order Any of the Supreme, County or Magistrates' Courts may make an order under the Judgment Debt Recovery Act 1984 allowing for payment of the debt by instalments, though applications in the Magistrates' and County Courts are the most usual: s 3. The order may be made either at the time ... ”

“ For an instalment order – Magistrates' Court The procedure is governed by Order 61 of the Magistrates Court General Civil Procedure Rules 2010. ”

“ If a debtor is concerned that a creditor may take steps to attach wages or seize property, it is sensible to apply for this order before the creditor seeks other forms of execution. While an instalment order is in force and being complied with, it operates as a stay of enforcement or execution of ... ”

“ Once the instalment order application is filed with the court, the court officer (the registrar or prothonotary, as the case may be) will consider the application, make the order and advise the parties of the outcome in writing. The court officer can grant or refuse an application, with or without ... ”

“ The debtor and the creditor can agree to an instalment order: s 7 Judgment Debt Recovery Act 1984. In the Magistrates’ Court, an instalment order by agreement is obtained by filing: ”

“ An Attachment of Earnings Order is obtainable in the Supreme, County or Magistrates' courts, requiring the debtor's employer to deduct instalments from the debtor's wages and forward that money to the creditor. An Attachment of Earnings Order cannot be made if the debtor receives social security ... ”

“ At the hearing, the creditor must supply the debtor’s employment details. This includes the amount the debtor is paid, the frequency of payments and the ongoing nature of the debtor's employment. The registrar will be unable to make an order without these details. The court can direct the debtor's ... ”

“ If the debtor is owed money by a third party, the creditor may apply to any of the Supreme, County or Magistrates' Courts for an order to compel the third party to pay that money directly to the creditor. The procedure comes under Order 71 of the civil rules in all three jurisdictions. Order 71 of ... ”

“ An application for a Warrant to Seize Property is made by the creditor filing with the court: at least two copies of the warrant, together with the filing fee, for issue; ”

“ The sheriff is directed by the warrant document to attend at a Victorian premise where the debtor has assets. If payment is not made, the sheriff can enter a property, using reasonable force, and seize assets belonging to the debtor sufficient to satisfy the debt: ss 19 and 21 Sheriff Act 2009. The ... ”

“ This warrant, formerly known as a writ of fieri facias or fi fa, is used to enforce a judgment against land owned by the debtor, although it can apply to both land and goods. Fi fa was replaced by the warrant of seizure and sale with the review of the Supreme Court Rules in 2005. When used to levy ... ”

“ If the debtor is the registered proprietor of land, prompt service of the warrant on the Registrar of Titles is essential to protect the judgment creditor's interests. Until it is served and a memorandum of service entered in the register in accordance with s 52(4) Transfer of Land Act 1958: ”

“ The sheriff must strictly conduct the sale and transfer. Section 208(3) of the Property Law Act 1958 requires the sale to be advertised in accordance with the Supreme Court Rules and a minimum of one month's notice of the intended sale to be given. Sales are strictly cash, bank cheque or solicitors ... ”

“ The chances of a sale and transfer within the three-month period are quite slim. Realistically, a great percentage of these warrants do not proceed to a sheriff's sale. Most are satisfied, in whole or in part, stalled or defeated by other dealings. However, the threat of a sale, particularly the ... ”

“ If the judgment debtor satisfies the demand without a sale proceeding, he is entitled to a satisfaction piece, a document analogous to a discharge of mortgage. Various forms of satisfaction are available depending on the circumstances, all requiring the judgment creditor to acknowledge payment in ... ”

“ The sheriff can deduct all reasonable expenses incurred in executing a warrant, including agent costs and expenses in selling the property, from the proceeds of sale before applying the balance to the amount payable under the warrant: s 32 Sheriff Act 2009. The priority of payments then is: first ... ”

“ A warrant is valid for 12 months after issue. The court may, before a warrant expires, extend the period of validity of a warrant, but any extensions cannot extend the warrant’s validity beyond the period of one year from when it would have otherwise expired. Thus, the maximum life of a warrant is ... ”

“ Proceeds from a sheriff’s sale are not received in the normal course of business and are subject to clawback if the debtor becomes bankrupt: s 118 Bankruptcy Act 1966. ”

“ Order 66 – Enforcement of judgments and orders. References to court rules in this section are uniform across the Supreme, County and Magistrates' Courts unless otherwise shown. ”

“ Issuing a warrant for possession Judgments for the possession of land are enforced by a warrant of possession under r 66.03 Supreme Court (General Civil Procedure) Rules 2015. This is an order of the court directed to the sheriff, requiring him to enter the property and give possession of it to the ... ”

“ The judgment creditor may apply for an order without notice to any person. The application must be supported by an affidavit: ”

“ These are actions for contempt of court. Sequestration removes property from its owner by judicial authority. Committal imposes imprisonment. ”

“ This is by summons with supporting affidavit, a sealed copy of which must be served on each person bound. In the case of a company, a copy of the summons and affidavits in support must also be served on the officer whose property is sought to be sequestered: r 76.04. The order must appoint no fewer ... ”

“ At common law, a defendant in breach of an order to do a certain act was arrested for this contempt by a warrant of attachment. A defendant in breach of an order to abstain from doing a certain act was arrested under a warrant of commitment. Under r 66.05 of the Supreme Court (General Civil ... ”

“ In addition to the other measures for enforcing a judgment, a judgment for the payment of money, including a judgment for the payment of money into court, may be enforced by the appointment of a receiver of the income of the property of the person bound by the judgment, or committal: r 39.02. ”

“ Reciprocation between states and territories ”

“ Reciprocating countries Judgments made in superior and specified inferior courts outside Australia by reciprocating countries such as New Zealand, Papua New Guinea and the United Kingdom are enforced by registration under the Foreign Judgments Act 1991 (Cth). The Foreign Judgments Regulations 1992 ... ”