In our last article, Dealing with Rental Arrears, we investigated ways in which we can avoid escalation of a debt to the stage of eviction and working with your tenants to clear rental arrears.
What happens though when that fails and you are forced to not only commence proceedings in NCAT but also enforce those Orders? The Local Court in NSW provides several ways in which to enforce payment of a debt once a money order is registered as a Judgment. Let's look at the most common enforcement measures.
EXAMINATIONS AND WARRANTS
This can be a multi-step process depending on several factors including the ex-tenants ability to co-operate.The purpose of an Examination is to gather information about the ex-tenants financial position. This includes information about their income, expenditure, assets and liabilities and will typically result in an offer for payment being made.
Step 1 - Examination Notice This is a Court prescribed form that must be completed and returned by the ex-tenant within 28 days. This form asks for details of their financial position and requests an offer for payment and for supporting documentation to be attached. If a response is not received you may proceed to an Examination Order.
Step 2 - Examination Order In the event that the ex-tenant fails to complete and return the Examination Notice or this is not completed to your satisfaction, you can apply to the Court for an Examination Order. This Order must be served on the ex-tenant and advises them that they must attend the Court on a certain date and time to be examined by you, the Registrar or your representative about their financial position.
Step 3 - The Arrest Warrant
If the ex-tenant fails to appear the Court may issue an Arrest Warrant. This authorises the Office of the Sheriff to attend the ex-tenants place of residence and bring them to Court to be examined by the Registrar. It should be noted that the Sheriff will only make 1 attempt to execute the Warrant prior to need further fees for attempts to be paid.
WRIT FOR LEVY OF PROPERTY
This Order, issued by the Court, authorises the Office of the Sheriff to attend an address and attempt to make a seizure of goods in which to satisfy the debt. There are assets that may not be seized including tools of trade. This can be a costly process as the goods will need to be sold by the Sheriff at a public auction which requires payment of advertising fees, auction fees, etc
GARNISHEE ORDER FOR WAGES OR SALARY
This Order requires the ex-tenants employer to remit monies each pay period to forward monies above the weekly compensation amount to satisfy the debt.
GARNISHEE ORDER FOR DEBT
This Order can be attached to a financial institution or any other organisation or person that may hold money that is due to be paid to the ex-tenant. The Local Court requires very specific information to be contained in these Orders. There are also protections in place for those in receipt of Centrelink.
This is only a brief overview of the available options. If you have any questions you should speak with a qualified legal practitioner.
Disclaimer: This article is general information only and does not constitute legal advice and is not intended to be relied on in any way.
