You have been successful in obtaining a civil judgment – How do you enforce it?

If you have been successful in obtaining judgment (for instance in relation to the payment of a sum of money), but the other party is refusing to pay or is unable to pay, you may need to take further court action.

The first step, after successfully obtaining judgment, is to get the judgement sealed so that you can serve a copy on the unsuccessful party.  The unsuccessful party must comply with the orders if they want to avoid enforcement action (which may further increase the debt they owe). 

Sometimes a successful party may agree to enter into an agreement whereby the unsuccessful party (the debtor) pays off the judgment sum over a period of time (for instance if the debtor cannot afford to pay the whole amount at once, and the successful party does not immediately need the money to be paid). 

If an agreement to pay has not been reached, or has not complied with, then you can ask the court to help you get the money.  This is known as enforcement action.    

You can take enforcement action forty-eight hours after the judgment has been made.  If the judgment has not been enforced for six years, you will need to ask the court for special permission (or leave) to commence enforcement action.  If, however, there has been a part payment in the previous twelve months, you may be able to commence enforcement action without seeking leave. 

There are several types of enforcement action available, and the best option will depend largely on the debtor’s financial position.  If you do not know much about the debtor’s financial position, then you may opt for a financial assessment hearing first.  This can be done in person or over the phone. 

From a financial assessment hearing you find out things like whether the debtor owns any property, what the debtor’s other liabilities are, whether they have any income and how much that income is. 

You could ask the court for an order that results in money being deducted directly from the debtor’s wages or benefit (an attachment order).  If you are successful you will receive regular payments towards the debt (of up to 40% of the debtor’s income).  If the debt is very large, it may take a long time to collect all the money from the debtor. 

In order to apply for an attachment order, you will need to know who the debtor’s employer is or know the debtor’s WINZ number or date of birth.  You will need to provide a copy of the order to the debtor’s employer or if the debtor is a beneficiary, the Department of Justice. 

If the debtor changes employer or stops receiving a benefit, the collection of money will stop.  You can apply to vary the attachment order if that becomes necessary. 

If you know that the debtor owns property you may instead decide to apply for the seizure of that property.  If you are successful in obtaining such an order, the debtor’s property will be seized by a bailiff, and the debtor will have five working days to repay the debt.  If the debt is not repaid, the bailiff will be able to sell the property.  The debtor will also become liable for the additional cost of collecting, storing and selling the property.  If you do not know where the debtor’s property is located it may be difficult to apply for this type of enforcement order because you will need to provide evidence that the debtor owns the property and also instructions about where the property is located and how the bailiff can seize the property.

A garnishee order is helpful if you are aware that someone else owes the debtor money.  In that case you can ask the court to order that person to pay the money to you instead. 

A charging order is when you register an interest over someone’s property.  A charging order will prevent the person from selling their property until such time as they reach an agreement to repay the debt or they have repaid the debt. 

If you have learnt from a financial assessment hearing that the debtor has the ability to pay the debt but refuses to do so, you can apply for a contempt of enforcement proceedings.  You will need to show that other enforcement measures have not been successful.  A judge can then order the debtor to do up to 200 hours of community service in addition to paying the debt. 

You may decide not to take any enforcement action if it appears that the debtor has no way to pay the debt.  You may instead apply for the debtor to be declared bankrupt (or if the debtor is a company you can apply for the company to put into liquidation).  

Taking enforcement action can be daunting.  If you need assistance, a lawyer could be helpful.