Winning a civil case for money in a New South Wales court is only half the battle. If the defendant does not pay, the judgment you obtained is a piece of paper recording a debt. That debt is called a judgment debt, and the party who owes it becomes a judgment debtor. Collecting it is a separate process called enforcement, and in NSW the machinery for it sits in Part 8 of the Civil Procedure Act 2005 (NSW) and the Uniform Civil Procedure Rules 2005 (NSW).
Enforcement is a menu rather than a single procedure. Your options are examination (finding out what the debtor owns), garnishee orders (attaching money a third party holds for the debtor), charging orders (freezing a specific valuable asset), a writ for the levy of property (having the Sheriff seize and sell assets), and, for debtors who will not or cannot pay at all, bankruptcy, a statutory demand or liquidation. Which tool works depends on one thing above all: what the judgment debtor actually has, and whether the debtor is an individual or a company.
The players in a judgment enforcement
Before the options, it helps to know who is doing what:
- Judgment creditor: You. You choose the enforcement method, file the applications, pay the fees, and (in most cases) add the enforcement costs to the amount the debtor must repay.
- Judgment debtor: The person or company bound by the judgment. They can respond to enforcement steps, apply to set them aside, or ask the court to let them pay by instalments.
- The court: Local, District or Supreme, depending on where judgment was entered. The court issues the orders that drive each enforcement method.
- The Sheriff: An officer of the court who physically seizes and sells property under a writ for the levy of property.
- Garnishees: Third parties who hold or owe money to the debtor, such as a bank, an employer or a tenant. A garnishee order compels them to pay that money to you instead.
- Trustees and liquidators: Appointed in bankruptcy and liquidation respectively. They take control of the debtor's assets and distribute them to creditors in a statutory order of priority.
The practical question is always the same: which of these levers fits the debtor's situation, and can it be pulled before the debtor moves or spends what little they have.
First, find out what the judgment debtor owns
Every enforcement tool targets a different kind of asset, so the first step is usually to build a picture of the debtor's financial position. NSW law gives you two ways to do that, in the Civil Procedure Act 2005 (NSW) and the Uniform Civil Procedure Rules 2005 (NSW).
Examination notices
An examination notice is a form you serve directly on the judgment debtor. It does not get filed with the court, and it requires the debtor to answer specified questions and produce specified documents about their finances. Under Part 38 of the Uniform Civil Procedure Rules, the notice must give the debtor at least 28 days to respond.
The questions can cover the matters the court regards as material under s 108 of the Civil Procedure Act: the debtor's income and other financial resources, property they own, debts they owe, their employment, bank accounts, weekly living expenses, and how they propose to pay the judgment debt. The notice can also demand copies of documents such as payslips, bank statements and tax returns.
Examination orders
Debtors frequently ignore examination notices. If yours does, you can apply to the court for an examination order under s 108 of the Civil Procedure Act, which compels the debtor to attend court, answer questions on oath and produce documents. The court will only make the order if your affidavit shows the judgment remains unsatisfied and that an examination notice was served and not complied with, which is why the notice usually comes first. If the debtor is a company, the order can be addressed to any of its officers.
If the debtor then fails to attend without a lawful excuse, the court can issue a warrant for their arrest under s 97 of the Civil Procedure Act. An examination is often the moment a previously defiant debtor realises the matter is serious and offers a payment plan.
Garnishee orders: intercept money owed to the debtor
A garnishee order is a court order addressed to a third party (the garnishee) who holds money for the judgment debtor or owes money to them. It directs that third party to pay the attached amount to you instead of to the debtor. The two common targets are bank accounts and wages or salary, but the order can attach any debt that is due or accruing from the garnishee to the debtor at the time the order is served, under s 117 of the Civil Procedure Act. Money standing to the debtor's credit in a bank account counts as a debt owed to the debtor for this purpose.
Applying for a garnishee order
The application is made by notice of motion supported by an affidavit identifying the garnishee and the debts the garnishee owes or is reasonably likely to owe the debtor, under Division 4 of Part 39 of the Uniform Civil Procedure Rules. The affidavit must be sworn no more than 14 days before it is filed. Crucially, the application can be dealt with in the absence of the parties, and the rules do not require it to be served on the judgment debtor before the order is made. That element of surprise matters: if the debtor learns a bank-account garnishee order is coming, the account can be emptied before the order lands.
The protections built into garnishee orders
Garnishee orders are not a licence to strip the debtor bare. Under s 118A of the Civil Procedure Act, amounts attached from a bank account must not reduce the balance below $447.70, and under s 122 a wage garnishee must not reduce the debtor's net weekly wage below $447.70. Both figures are adjustable amounts that are indexed over time, so the operative figure today is slightly higher than the base amount. Certain welfare and pension payments are also protected from attachment, and superannuation savings generally cannot be reached through a garnishee order because they are not a debt owed to the debtor. A lawyer can confirm how these protections apply to the specific payment type you want to attach.
If the garnishee ignores the order
The garnishee, not the debtor, is the one bound to pay. If a bank or employer fails to comply with a served garnishee order, you can apply to the court, which may give judgment against the garnishee for the lesser of the attached amount or the unpaid judgment debt under s 124 of the Civil Procedure Act. The court can refuse if the amounts involved are trivial, so a garnishee order against a garnishee who owes nothing achieves little. If the debtor changes jobs or banks, a fresh order is needed against the new garnishee, which is why the information from an examination is so valuable.
Charging orders: freeze a specific asset
A charging order secures the judgment debt against a particular asset of the debtor. It is not available for every judgment: s 106(1)(c) of the Civil Procedure Act limits it to judgments of the Supreme Court or the District Court. If your judgment is from the Local Court, this lever is not open to you.
The assets that can be charged are defined in s 126 of the Civil Procedure Act: stock and shares in a public company, money on deposit with a financial institution (including money held in someone else's name in trust for the debtor), and equitable interests in property.
A charging order charges the asset in your favour to the extent needed to satisfy the judgment, and restrains the debtor from dealing with it except in accordance with your directions. It takes effect as soon as it is made. Any transfer or disposal by the debtor while the order is in force is of no effect against you under s 128 of the Civil Procedure Act, and a third party who deals with the asset while aware of the order can be made personally liable to you under s 127.
There are two things to understand about charging orders. First, the order does not give you the asset. To take ownership you must start separate enforcement proceedings, and you cannot do that until three months have passed since the order was made, per s 126(4). Second, the application itself is straightforward: it is made by notice of motion and can be dealt with in the absence of the parties, so the debtor does not need notice before it is made, under Division 5 of Part 39 of the Uniform Civil Procedure Rules. The charging order is a holding move: it preserves the asset while you work out how to realise it.
Writs for the levy of property: the Sheriff seizes and sells
A writ for the levy of property is the classic enforcement remedy. It directs the Sheriff to seize and sell the debtor's property to pay the judgment. Under s 106(2) of the Civil Procedure Act, a writ authorises the Sheriff to seize and sell goods, seize money, realise cheques, bills, bonds and other securities, enter and sell land, and take equitable interests in property.
What the Sheriff cannot take
The Sheriff's powers have real limits. The protections in the Bankruptcy Act are mirrored here: s 106(3) of the Civil Procedure Act prevents the Sheriff from seizing the kinds of property listed in s 116(2) of the Bankruptcy Act 1966 (Cth), which protects basic household items and tools of trade. Under the Uniform Civil Procedure Rules, tools of trade worth less than $2,000 in aggregate cannot be seized at all. Land can only be pursued if the amount outstanding exceeds the jurisdictional limit of the Local Court sitting in its Small Claims Division, under s 106(5), a limit that has been raised over time so the current figure should be confirmed. And if the cost of seizing, storing and selling goods would likely exceed their sale price, the Sheriff will not seize them at all, under s 106(4A). A writ against a debtor who owns only worthless or heavily encumbered assets can therefore produce nothing.
How the writ runs
The Sheriff must notify the judgment debtor before enforcing the writ, under s 115A of the Civil Procedure Act. Seized goods cannot be sold before the sixth day after seizure, unless they are perishable, and the sale must be publicly advertised, under Part 39 of the Uniform Civil Procedure Rules. For land, the writ is registered against the title, and while it is registered the debtor cannot sell or mortgage the land without your consent, under s 113 of the Civil Procedure Act.
A writ is not open-ended. It has a limited working life, and if the debt remains unpaid when it lapses, or the Sheriff found nothing to seize, you apply to the court to issue another. Enforcement costs, including the Sheriff's fees, can generally be added to the debt and recovered from the debtor. Where the debtor refuses the Sheriff entry, a further court order can authorise entry using force if necessary, though this is rarely a quick process.
Bankruptcy, statutory demands and liquidation
Where the debtor is an individual or a company that will not or cannot pay, the ultimate enforcement tools are the external administration regimes: bankruptcy for individuals and statutory demands and liquidation for companies.
Bankruptcy of an individual debtor
Bankruptcy starts with the judgment. The final judgment must be for at least $10,000 and no more than 6 years old, according to the Australian Financial Security Authority (AFSA). You apply to AFSA for a bankruptcy notice, pay the application fee, and serve the notice on the debtor, who then has 21 days to pay. If the debtor does not comply, they have committed an act of bankruptcy, and you can present a creditor's petition to the Federal Court. Under s 44 of the Bankruptcy Act 1966, the act of bankruptcy must have occurred within 6 months before the petition.
If the court makes a sequestration order, a trustee takes control of the debtor's financial affairs, sells assets and distributes the proceeds among creditors in a statutory order of priority. This is a blunt instrument: you lose control of the process, other creditors may rank ahead of you, and most superannuation is protected from the bankrupt's creditors.
Statutory demands against companies
For a company, the first step is a statutory demand under s 459E of the Corporations Act 2001 (Cth). A statutory demand can only be issued for a debt of at least the statutory minimum, which has been $4,000 since 1 July 2021. The company must pay the debt within a limited period, or apply to the court to set the demand aside. If the company does apply to set the demand aside, the compliance clock stops and the company only needs to comply within 7 days after the application is finally decided, under s 459F of the Corporations Act.
If the company neither pays nor successfully sets the demand aside, it is taken to have failed to comply. That failure founds a presumption that the company is insolvent, which in turn allows you to apply to have the company wound up.
Liquidation
Liquidation is the company equivalent of bankruptcy. A liquidator is appointed, takes control of the company, sells its assets and distributes the proceeds in the statutory priority order, with secured creditors and employees ahead of ordinary unsecured creditors. For an unsecured judgment creditor, liquidation often produces only a fraction of the debt, or nothing, once the company's other obligations are met. The threat of it, however, is frequently what produces payment: many companies that can pay will do so rather than face a winding-up application.
Where a lawyer earns their keep in enforcement
Each enforcement step is procedural, but the procedure is unforgiving. Affidavits must be sworn within the right window, orders must be served on the right parties, and the choice of tool must match the debtor's actual asset position. A debt recovery lawyer can map the debtor's finances revealed by an examination against the available levers, prepare and file the applications, and handle service, which is a common point of failure for self-represented creditors.
A lawyer is particularly valuable on the judgment calls: whether the debtor is worth pursuing at all, whether other creditors are circling, whether a garnishee order should come before an examination, and whether bankruptcy or a writ is the more cost-effective route. Enforcement is often cheaper than the litigation that produced the judgment, because the fight over liability is over. The remaining question is which lever fits, and a lawyer can usually answer that in a single consultation.
Act on information, and act fast
The most valuable asset in judgment enforcement is knowledge of the debtor's position, and the most expensive mistake is picking a lever blind. Examination exists precisely to remove that blindness, and the no-notice tools, garnishee orders and charging orders, exist to let you act on the information before the debtor can move their assets. Time is also against you: a bankruptcy notice requires a judgment that is less than 6 years old, writs lapse, and debtors rarely become easier to collect from over time. Run the examination, pick the lever that matches what you find, and pull it promptly. If you are unsure which option fits your judgment, a free consultation with a debt recovery lawyer is a cheap first step compared with the cost of an enforcement attempt that comes up empty.