South Australia: Enforcement of Judgments Act 1991 (SA)

South Australia Enforcement of Judgments Act 1991 An Act to make provision for the enforcement of judgments; and for other purposes. Contents Part 1—Preliminary 1 Short title 3 Interpretation Part 2—Monetary judgments 3A Investigation notices 4 Investigation of judgment debtor's financial position 5 Order for payment of instalments etc 6 Garnishee orders 7 Seizure and sale of property 8 Charging orders 9 Appointment of receiver 10 Enforcement of monetary judgments in rem Part 3—Non-monetary judgments 11 Authority to take possession of property 12 Enforcement of judgments by proceedings in contempt 13 Execution of instruments by order of the court Part 4—Miscellaneous 14 Absconding debtors 15 Execution against unincorporated associations 16 Rights of purchaser of property sold in execution 17 Stay of execution 18 Exercise of powers 19 Rules of court Legislative history Appendix—Divisional penalties and expiation fees The Parliament of South Australia enacts as follows: Part 1—Preliminary 1—Short title This Act may be cited as the Enforcement of Judgments Act 1991. 3—Interpretation In this Act, unless the contrary intention appears— business debt means a debt incurred in the course of carrying on a business; court means— (a) the Supreme Court; or (b) the District Court; or (c) the Magistrates Court; judgment includes an order, declaration or decree; judgment debt includes the costs of enforcing the judgment under this Act; judgment creditor includes a person to whom the benefit of a monetary judgment has passed (by assignment or in any other way); judgment debtor includes any person against whom a monetary judgment is enforceable; land includes premises (including residential premises); monetary judgment means a judgment for the payment of a sum of money (whether or not the judgment provides for any other form of relief); sale of property includes conversion of the property into money by any appropriate means. Note— For definition of divisional penalties (and divisional expiation fees) see Appendix. Part 2—Monetary judgments 3A—Investigation notices (1) A judgment creditor may, by notice in writing served on a judgment debtor (an investigation notice), require the judgment debtor to do either or both of the following: (a) to provide answers to specified questions relating to the judgment debtor's means of satisfying the judgment (material questions); (b) to produce for inspection by the judgment creditor specified documents relating to material questions. (2) An investigation notice must specify the period (being not less than 28 days) within which its requirements must be complied with. (3) An investigation notice must comply with any other requirements set out in the rules of the relevant court. (4) If information or a document is provided to a person in accordance with an investigation notice under this section, a person who uses the information or document for a purpose other than assessing a judgment debtor's means of satisfying a judgment is guilty of an offence. Maximum penalty: $5 000. 4—Investigation of judgment debtor's financial position (1) The court may, on application by the judgment creditor, investigate the judgment debtor's means of satisfying a monetary judgment. (2) The court will, on application by the judgment creditor, issue a summons to require the judgment debtor or any other person who may be able to assist with the investigation to appear for examination before the court or to produce documents relevant to the investigation to the court. (3) A summons under subsection (2) must be served personally. (4) If a person fails to appear as required by the summons, the court may issue a warrant to have the person arrested and brought before the court. 5—Order for payment of instalments etc (1) The court may, on application by a judgment creditor, order the judgment debtor— (a) to pay the judgment debt immediately or within a period specified by the court; or (b) to pay such instalments towards the satisfaction of the judgment debt as the court specifies in the order. (2) An order can only be made against a natural person under subsection (1) if— (a) the court has conducted an investigation into the judgment debtor's means of satisfying the judgment; or (b) the court is satisfied that there are, in the circumstances of the case, proper reasons for dispensing with such an investigation. (3) In making such an order against a natural person, the court should have due regard to evidence placed before it as to— (a) the judgment debtor's means of satisfying the judgment; and (b) the necessary living expenses of the judgment debtor and his or her dependants; and (c) other liabilities of the judgment debtor, and where satisfactory evidence is placed before the court on those subjects the court should frame its order so as to ensure that it does not impose unreasonable obligations on the judgment debtor. (4) The court may, on application by a judgment creditor or a judgment debtor, rescind, suspend or vary an order under subsection (1). (5) If a judgment debtor (being a natural person) fails to comply with an order under subsection (1), the court will, on application by the judgment creditor, issue a summons (which must be served personally) to require the judgment debtor to appear for examination before the court. (6) If a judgment debtor fails to appear as required by the summons, the court may issue a warrant to have the judgment debtor arrested and brought before the court for examination. (7) If, after examination of a judgment debtor, the court is satisfied that the judgment debtor has, without proper excuse, failed to comply with the order under subsection (1), the court may commit the judgment debtor to prison for not more than 40 days (but if the order is for payment by instalments, an order for imprisonment cannot be made unless at least two instalments are in arrears). (8) If payment of the judgment debt or all arrears of instalments (as the case requires) is made, the judgment debtor must be discharged from custody even though the period of imprisonment has not expired. 6—Garnishee orders (1) The court may, on application by a judgment creditor (which may be made without notice) order that— (a) money owing or accruing to the judgment debtor from a third person; or (b) money of the judgment debtor in the hands of a third person (including money in an ADI account), be attached to answer the judgment and paid to the judgment creditor. (1a) Except where the court orders otherwise, the garnishee must pay money subject to attachment directly to the judgment creditor in accordance with the rules of the relevant court. (2) Without limiting the orders that may be made under subsection (1) but subject to subsections (2a) and (2b), the court may, without the consent of the judgment debtor and, to the extent the court considers appropriate, make an order under subsection (1) attaching salary or wages. (2a) The amounts under 1 or more orders made in accordance with subsection (2) must not, in total, reduce the net weekly amount of any wage or salary received by the judgment debtor from the garnishee to less than the designated amount. (2b) In particular, if the court is satisfied that the amount earned by a judgment debtor in salary or wages varies significantly from period to period during a year (for example, due to the casual nature of their employment), the court must take that matter into account in order to ensure that the amounts under 1 or more orders made in accordance with subsection (2) do not, in total, reduce the net weekly amount of any wage or salary received by the judgment debtor from the garnishee to less than the designated amount during the period to which the order or orders relate. (2c) An order may be made under subsection (1) attaching money held in a term deposit. (2d) For the purposes of subsection (2c), an order attaching money held in a term deposit attaches to the term deposit at the time the order is made (whether or not the term deposit has matured) but the liability to pay the garnisheed amount is not incurred until the term deposit matures or is terminated by the debtor. (3) If an order is made under this section on an application made without notice to the judgment debtor or the garnishee (or both), the following provisions apply: (a) the order will operate to restrain the garnishee from dealing with money to which the order relates until both the judgment debtor and the garnishee have had an opportunity to be heard in the proceedings; (b) the court will adjourn the proceedings to give the judgment debtor and the garnishee an opportunity to be heard; (c) at the adjourned hearing the court will allow the judgment creditor and the garnishee to give evidence or make representations (or both); (d) after consideration of the evidence and representations (if any), the court will confirm, vary or revoke the order. (4) In deciding whether to make, vary or confirm an order under this section affecting money of a natural person, the court should have due regard to any evidence placed before it as to— (a) the judgment debtor's means of satisfying the judgment; and (b) the necessary living expenses of the judgment debtor and his or her dependants; and (c) other liabilities of the judgment debtor. (5) An order under this section may authorise the garnishee to retain from the money subject to attachment a reasonable sum, fixed in the order, as compensation for the garnishee's expenses in complying with the order. (6) If the garnishee does not comply with an order under this section— (a) the garnishee commits a contempt of the court by which the order was made; and (b) the garnishee becomes personally liable for payment to the judgment creditor of the amount subject to attachment. (7) If, because a garnishee order has been made in relation to an employee, the employer— (a) dismisses the employee; or (b) injures the employee in employment; or (c) alters the employee's position to the employee's prejudice, the employer is guilty of an offence. Penalty: Division 5 fine. (7a) In this section— designated amount means the amount that is 90% of the weekly national minimum wage set out in the national minimum wage order made (from time to time) under section 285 of the Fair Work Act 2009 of the Commonwealth; net weekly amount, in relation to any wage or salary payable to a judgment debtor, means the amount payable each week to the judgment debtor after deducting any taxes or other sums that, pursuant to any Act (including any Commonwealth Act), are required to be deducted from any such money. 7—Seizure and sale of property (1) The court may, on application by a judgment creditor, issue a warrant of sale authorising seizure and sale of a judgment debtor's real or personal property (or both) to satisfy a monetary judgment. (2) The seizure and sale of personal property that could not be taken in bankruptcy proceedings against the judgment debtor cannot be authorised. (2a) The sheriff may, on a warrant being issued under this section, by notice in writing served on a judgment debtor, require the judgment debtor to provide to the sheriff such information or documents relating to the interests of third parties in specified real or personal property owned by the judgment debtor as may be specified in the notice. (2b) The sheriff may, on a warrant being issued under this section, by notice in writing served on a person other than a judgment debtor who the sheriff reasonably believes has or may have an interest in real or personal property owned by the judgment debtor, require the person to disclose to the sheriff— (a) the nature of the interest; and (b) if the interest is a security over the property— (i) the amount secured against the property; and (ii) the amount outstanding under the security; and (iii) the amount and rate of interest accruing; and (iv) any change that occurs to the terms of the security; and (c) the amount of money that is owed to the person in relation to the property; and (d) any other information specified by the sheriff (being information that the sheriff considers relevant to the sheriff's duties and functions under this section). (2c) A notice under this section must comply with any requirements set out in the rules of the relevant court. (2d) A person who refuses or fails to comply with a requirement of a notice under this section is guilty of an offence. Maximum penalty: $5 000. (3) The sheriff may, in relation to a warrant under this section, do any or all of the following: (a) enter land (using such force as may be necessary for the purpose) on which property to which the warrant relates, or documents evidencing title to such property, is situated; (b) seize and remove such property or documents; (c) retain such property or documents until completion of the sale; (d) sell any property to which the warrant relates (whether or not the sheriff has first taken steps to obtain possession of the property); (e) where the warrant authorises the sale of land— (i) take such steps as the sheriff considers necessary to prevent persons from entering the land; or (ii) by notice in writing direct a specified person to leave, or not to enter or attempt to enter, (or both) the land until completion of the sale; (f) if a person refuses to comply with a direction given under paragraph (e)(ii), or a person on the land is behaving in an unlawful manner— (i) remove the person from the land using such force as is reasonably necessary for the purpose; or (ii) cause the person to be detained and handed over into the custody of a police officer as soon as reasonably practicable; (g) give such other directions, or exercise such other powers, as may be set out in the rules of the relevant court for the purposes of this paragraph. (3a) The sheriff may, by notice in writing, vary or revoke a direction under subsection (3). (3b) A person who contravenes or fails to comply with a direction under subsection (3) is guilty of an offence. Maximum penalty: $5 000. (4) The sheriff may, in appropriate cases, leave a judgment debtor in possession of property until it is sold in pursuance of the warrant. (5) Subject to any contrary direction by the court— (a) the sale of real property or tangible personal property will be by public auction (but if no bid that the sheriff considers acceptable is made at auction, the sheriff may proceed to sell the property by private treaty for a price not less than the highest bid); (b) if there is a reasonable possibility of satisfying the judgment debt out of personal property, the sheriff should sell personal property before proceeding to sell real property. (6) Where any part of the judgment debtor's property consists of intangible property, the sheriff may sign any transfer or do anything else necessary to convert that property into money. (7) Where property of the judgment debtor seized in pursuance of the warrant consists of a bank note or other money, the sheriff must, unless it has a value greater than its face value, hand it over to the judgment creditor in full or partial satisfaction of the judgment. 8—Charging orders (1) A court may, on application by a judgment creditor, charge property of a judgment debtor with a judgment debt or part of a judgment debt. (2) Where the court makes an order under subsection (1), it may make ancillary or consequential orders— (a) requiring registration of the charge; or (b) prohibiting or restricting dealings with the property subject to the charge; or (c) providing for the sale of the property and the application of the proceeds of sale; or (d) relating to any other incidental or consequential matters. 9—Appointment of receiver (1) The court may, on application by a judgment creditor, appoint a receiver for the purpose of enforcing a judgment. (2) A receiver may be appointed even though no other proceedings have been taken for enforcement of the judgment. (3) Where a receiver is appointed, the court may make orders— (a) conferring on the receiver powers— (i) to take charge of property of the judgment debtor; (ii) to dispose of property of the judgment debtor; (iii) to divert income (other than income from employment or a pension) towards satisfaction of the judgment debt; (iv) to take charge of, and carry on, a business of the judgment debtor and apply proceeds from the business towards satisfaction of the judgment debt; (v) to do anything reasonably necessary for, incidental to, or consequential on, the above; or (b) providing for accounts to be rendered by the receiver; or (c) providing for the remuneration of the receiver; or (d) relating to any other incidental or consequential matter. (4) A receiver's powers operate to the exclusion of the judgment debtor's powers. 10—Enforcement of monetary judgments in rem Where a court gives a monetary judgement against a vessel or other object, the court may authorise its seizure and sale. Part 3—Non-monetary judgments 11—Authority to take possession of property (1) The court may, on application by a person in whose favour a judgment for recovery or delivery up of possession of property has been given, issue a warrant of possession authorising the sheriff to take possession of the property and deliver it into the applicant's possession. (2) In executing the warrant, the sheriff may— (a) if the warrant relates to land—enter the land and eject from the land any person who is not lawfully entitled to be on the land; or (b) if the warrant relates to personal property—enter land and seize and take possession of the property, using appropriate means and such force as may be reasonably necessary in the circumstances. (3) A person who resumes possession of land or other property that is taken from the person under this section commits a contempt of the court by which the warrant was granted. 12—Enforcement of judgments by proceedings in contempt (1) Where a party is, by judgment of a court, ordered to do, or to refrain from doing, an act and the party contravenes or fails to comply with the judgment, the court may, on the application of the party entitled to the benefit of the judgment, issue a warrant to have the person arrested and brought before the court to be dealt with for a contempt of the court. (1a) For the purpose of executing a warrant issued under this section, the sheriff may enter or, where necessary, break into land where the sheriff reasonably suspects the person may be present, using such force as is reasonably necessary for the purpose. (2) A person cannot be dealt with under this section for failure to pay a monetary sum. 13—Execution of instruments by order of the court (1) If execution or endorsement of a document by a party to an action is necessary in order to give effect to a judgment, the court may— (a) order the party to execute or endorse the document; or (b) authorise an officer of the court to execute or endorse the document on behalf of the party. (2) A document executed or endorsed by an officer of the court has effect as if executed or endorsed by the party. Part 4—Miscellaneous 14—Absconding debtors (1) If— (a) a plaintiff has brought an action in a court for recovery of a monetary sum; and (b) there are grounds for believing— (i) that the defendant is about to leave the State; and (ii) that the defendant's absence from the State would seriously prejudice the plaintiff's prospects of enforcing a judgment that has been, or may be, given in that plaintiff's favour, the court may issue a summons requiring the defendant to appear for examination before the court, or issue a warrant to have the defendant arrested and brought before the court, for examination. (2) If, after examination of the defendant, the court is satisfied that there is good reason for doing so, it may require the defendant to give security for the satisfaction of any judgment that has been or may be given in the plaintiff's favour. (3) If a defendant fails without proper excuse to comply with a requirement under subsection (2), the defendant commits a contempt of the court by which the requirement was imposed. 15—Execution against unincorporated associations Where a monetary judgment is against a partnership or other unincorporated association, the judgment may be enforced— (a) against the partnership property or the common property of the association; or (b) against the property of any person who is liable for the debts of the partnership or association. 16—Rights of purchaser of property sold in execution (1) The purchaser of property sold by authority of a court acquires a good title to the property subject only to registered interests and interests of which public notice has been given pursuant to statute. (2) If, before the date of sale of property, a person claims to have an unregistered interest in the property, and gives notice of the claim in accordance with the rules of the relevant court, the sheriff must, if the claim is not disputed or the court orders the sheriff to recognise the validity of the claim— (a) pay the claimant out of the proceeds of the sale of the property, a sum sufficient to satisfy the claim; or (b) where appropriate to do so, withdraw the property from sale and give possession of it to that person. 17—Stay of execution A party against whom a judgment has been given may apply to the court for a stay of execution, and the court may, if satisfied that there is a proper reason for granting the stay, grant the stay on such terms as it considers appropriate. 18—Exercise of powers (1) A court may, by its rules, delegate any of its powers under this Act to officers of a class designated in the delegation. (2) A person dissatisfied with a decision made by an officer acting in pursuance of such a delegation may, subject to the rules, apply to the appropriate court for a review of the decision and, on such a review, the court may confirm, vary or reverse the decision. 19—Rules of court (1) Rules of court may be made under the Supreme Court Act 1935 on any subject contemplated by, or necessary or expedient for the purposes of, this Act. (2) Rules of court may be made under the District Court Act 1991 on any subject contemplated by, or necessary or expedient for the purposes of, this Act. (3) Rules of court may be made under the Magistrates Court Act 1991 on any subject contemplated by, or necessary or expedient for the purposes of, this Act. Legislative history Notes • Please note—References in the legislation to other legislation or instruments or to titles of bodies or offices are not automatically updated as part of the program for the revision and publication of legislation and therefore may be obsolete. • Earlier versions of this Act (historical versions) are listed at the end of the legislative history. • For further information relating to the Act and subordinate legislation made under the Act see the Index of South Australian Statutes or www.legislation.sa.gov.au. Principal Act and amendments New entries appear in bold. Year|No|Title|Assent|Commencement| 1991|80|Enforcement of Judgments Act 1991|12.12.1991|6.7.1992 (Gazette 2.7.1992 p209)| 1993|62|Statutes Amendment (Courts) Act 1993|27.5.1993|ss 27 & 28—1.7.1993 (Gazette 24.6.1993 p2047)| 1994|43|Statutes Amendment (Courts) Act 1994|2.6.1994|9.6.1994 (Gazette 9.6.1994 p1669)| 1996|67|Statutes Amendment (Attorney-General's Portfolio) Act 1996|15.8.1996|s 19—17.10.1996 (Gazette 17.10.1996 p1361)| 1997|59|Statutes Amendment (Attorney-General's Portfolio) Act 1997|31.7.1997|Pt 3 (s 5)—14.9.1997 (Gazette 11.9.1997 p704)| 1999|33|Financial Sector Reform (South Australia) Act 1999|17.6.1999|Sch (item 20)—1.7.1999 being the date specified under s 3(16) of the Financial Sector Reform (Amendments and Transitional Provisions) Act (No. 1) 1999 of the Commonwealth as the transfer date for the purposes of that Act: s 2(2)| 2012|17|Statutes Amendment (Attorney-General's Portfolio) Act 2012|24.5.2012|Pt 6 (s 16)—5.8.2012 (Gazette 2.8.2012 p3302)| 2023|12|Statutes Amendment (Civil Enforcement) Act 2023|30.3.2023|Pt 2 (ss 3 to 5)—18.9.2023 (Gazette 10.8.2023 p2955)| Provisions amended New entries appear in bold. Entries that relate to provisions that have been deleted appear in italics. Provision|How varied|Commencement| Pt 1||| s 2|omitted under Legislation Revision and Publication Act 2002|| s 3||| judgment debt|inserted by 62/1993 s 27|1.7.1993| Pt 2||| s 3A|inserted by 12/2023 s 3|18.9.2023| s 5||| s 5(8)|amended by 67/1996 s 19|17.10.1996| s 6||| s 6(1)|amended by 33/1999 Sch (item 20)|1.7.1999| s 6(1a)|inserted by 12/2023 s 4(1)|18.9.2023| s 6(2)|substituted by 12/2023 s 4(2)|18.9.2023| s 6(2a)—(2d)|inserted by 12/2023 s 4(2)|18.9.2023| s 6(7a)|inserted by 12/2023 s 4(3)|18.9.2023| s 7||| s 7(2a)—(2d)|inserted by 12/2023 s 5(1)|18.9.2023| s 7(3)|substituted by 12/2023 s 5(2)|18.9.2023| s 7(3a)|inserted by 62/1993 s 28|1.7.1993| |substituted by 12/2023 s 5(2)|18.9.2023| s 7(3b)|inserted by 12/2023 s 5(2)|18.9.2023| s 7(7)|inserted by 43/1994 s 16|9.6.1994| Pt 3||| s 11||| s 11(2)|substituted by 17/2012 s 16|5.8.2012| Pt 4||| s 12||| s 12(1a)|inserted by 59/1997 s 5|14.9.1997| Transitional etc provisions associated with Act or amendments Statutes Repeal and Amendment (Courts) Act 1991 8—Non-application of certain Imperial Acts The following Acts of the Imperial Parliament have no further force or effect in the State: 56 Geo III c. 50 8 Anne c. 14. 21—Transitional provisions—Enforcement of judgments (1) A judgment given by a local court of full jurisdiction will be regarded as a judgment of the District court and is enforceable under the Enforcement of Judgments Act 1991. (2) A judgment given by a local court of limited or special jurisdiction will be regarded as a judgment of the Magistrates Court and is enforceable under the Enforcement of Judgments Act 1991. (3) Any proceedings for enforcement of a judgment commenced before the commencement of this Act may be continued and completed under the law in force at the time of the commencement of those proceedings. Historical versions Reprint No 1—1.7.1993|| Reprint No 2—9.6.1994|| Reprint No 3—17.10.1996|| Reprint No 4—14.9.1997|| Reprint No 5—1.7.1999|| 5.8.2012|| Appendix—Divisional penalties and expiation fees At the date of publication of this version divisional penalties and expiation fees are, as provided by section 28A of the Acts Interpretation Act 1915, as follows: Division|Maximum imprisonment|Maximum fine|Expiation fee| 1|15 years|$60 000|—| 2|10 years|$40 000|—| 3|7 years|$30 000|—| 4|4 years|$15 000|—| 5|2 years|$8 000|—| 6|1 year|$4 000|$300| 7|6 months|$2 000|$200| 8|3 months|$1 000|$150| 9|–|$500|$100| 10|–|$200|$75| 11|–|$100|$50| 12|–|$50|$25| Note: This appendix is provided for convenience of reference only.