Overview
Once a money order is made, what is the next step in enforcing the order against a debtor?
The next step is to progress the matter through the enforcement process and if required, make an application for an enforcement hearing, to allow the creditor to determine whether the debtor has sufficient means to pay the judgment against them. Upon becoming aware of the debtor’s financial capacity, the creditor may apply to the Court for an enforcement warrant.
Enforcement Hearing Process
The Uniform Civil Procedure Rules 1991 (Qld) (‘UCPR’) provides that the following steps must be completed prior to an enforcement hearing summons being granted by the Court:
- Serve the debtor with a statement of financial position;
- Wait for the required time to receive the completed statement of financial position;
- Make an application for an enforcement hearing;
- Serve the enforcement hearing summons on the debtor;
- Attend the enforcement hearing to question the debtor regarding their financial information.
Statement of Financial Position
The statement of financial position is a detailed document that the debtor is required to complete and return to the creditor, to allow the creditor to determine whether the debtor has sufficient means to pay the judgment against them. The statement of financial position contains questions pertaining to the debtor’s income, expenses, assets, liabilities, and a proposal for payment of the debt.
Approved Form
Rule 807 of the UCPR particularises the requirements of a statement of financial position, with rule 807(1) stating:
“At any time after a money order is made, an enforcement creditor may, by written notice, require an enforcement debtor to complete and return to the enforcement creditor a statement of financial position of an enforcement debtor in the approved form.
The approved forms for a statement of financial position are:
- Form 71 – if the debtor is a person; or
- Form 71A – if the debtor is a company.
Serving a statement of financial position
Rules 807(2) of the UCPR outlines that:
“(2) The written notice must be given or sent by post to the enforcement debtor together with a blank statement of financial position.”
It is recommended that when a statement of financial position is sent via post, that it be sent by express or registered post to allow the creditor to confirm once it has been delivered and thereby being aware of when the debtor’s time for compliance commences. Rule 807(3) of the UCPR outlines that a debtor must complete and return the statement of financial position within 14 days after receiving the statement.
If the debtor returns the statement of financial position, there is no requirement for an enforcement hearing, however, it is more common for a debtor to simply refuse to complete the statement or fail to provide sufficient information and documentation as required under rule 807(6) of the UCPR. In either of those circumstances, the creditor can apply for an enforcement hearing.
Application for an Enforcement Hearing
To apply for an enforcement hearing, the creditor will need to be file the following documents with the Court:
- The Application – Form 9;
- The affidavit in support of the application – Form 46;
- The draft enforcement hearing summons – Form 70.
It is recommended that you obtain legal advice in relation to drafting these documents to ensure that they comply with the UCPR and contain the required information.
Service of the summons
Upon the Court being satisfied with the material filed, the Court will issue a sealed enforcement hearing summons. The creditor must attend to serving the summons on the debtor. Pursuant to rule 809(2) of the UCPR, service can be effected by prepaid ordinary post or personally serving the debtor with the summons. Rule 809(4) of the UCPR, requires that service of the summons be effected at least 14 days before the enforcement hearing date.
It is important that the summons is correctly served on the debtor to ensure that the debtor attends the enforcement hearing. The registrar may issue an enforcement hearing warrant (warrant for their arrest), if the debtor fails to attend the hearing but only in circumstances where the registrar is satisfied that service has been effected on the debtor.
Summary
Upon obtaining a money order against a debtor, the next step is to progress the matter through the enforcement process and if required, make an application for an enforcement hearing. In doing so, will allow the creditor to determine whether the debtor has sufficient means to pay the judgment against them. Upon becoming aware of the debtor’s financial capacity, the creditor may apply to the Court for an enforcement warrant.
If you or anyone you know has any questions or requires assistance with the enforcement hearing process, please do not hesitate to contact the team at Miller Sockhill Lawyers.