Active Debt Recovery: No Win No Fee

Source: Magistrates Court of Queensland Website as at 27 February 2018
 
What is an enforcement hearings?
An enforcement hearing uncovers financial information about a person who owes money (enforcement debtor) under a court order.
 
If you’re owed money (enforcement creditor), you can apply to the court for an enforcement hearing.
 
The debtor must attend court and complete a statement of their financial position, giving you information about the debtor’s ability to pay the financial obligation.
 
A creditor can start enforcement proceedings without leave from the court within six years of the money order or judgment being made.
 
What must you do before you apply for an enforcement hearing?
Before applying for an enforcement hearing, first send the enforcement debtor to complete a statement of financial position form. If they either don’t receive a copy or don’t complete the form sufficiently within 14 days, you can apply for an enforcement hearing.

How do you service the enforcement hearing summons?
Note: The debtor must be served personally the summons at least two weeks before the enforcement hearing date.
Our comment: If the debtor is a company the director/s should be served personally the summons at least two weeks before the enforcement hearing date. If the director is not served personally then an arrest warrant for not attending the enforcement hearing cannot be issued.
 
How is personal service performed?
  • To serve a document personally, the person serving it must give the document, or a copy of the document, to the person intended to be served.
  • However, if the person does not accept the document, or copy, the party serving it may serve it by putting it down in the person’s presence and telling him or her what it is.
  • It is not necessary to show to the person served the original of the document.
 
What information can you request at the enforcement hearing?
Enforcement creditors can instruct the debtor to provide information about:
  •  their assets (e.g. land, house, shares, stocks, bonds, vehicles and other property)
  • their income, and employer’s name and address
  • their debts
  • their bank accounts
  • any other relevant information about their financial position
  • their means of paying the debt.
When you are satisfied with the debtor’s information, you can apply for an enforcement warrant.
 
Where do you have the enforcement hearing?
Enforcement hearings usually take place in the court where the money order or judgment was originally granted.
 
However, enforcement hearings can be heard at any court in Queensland. If you would like an enforcement hearing in a different court, file a sealed copy of the judgment at your preferred courthouse.
 
Our comment: If you obtain the enforcement hearing in the district where the debtor lives or conducts business, no conduct money is payable to the debtor.
 
Do you have to pay conduct money to the debtor?
Note: The creditor must offer money to cover travelling expenses (‘conduct money’) if the debtor must attend court outside the district where they live or conduct business.

Our comment: The judgment should be moved to the closest court where the debtor lives or conducts business to avoid paying conduct money to the debtor.
 
Who must attend the enforcement hearing?
Both the enforcement creditor and debtor must attend the enforcement hearing.
 
Our comment: The debtor can appoint a lawyer or commercial agent to attend on their behalf.
 
What happens if the debtor doesn’t attend the enforcement hearing?
 
If the debtor fails to attend and doesn’t have an adequate explanation, the creditor can ask the registrar to order an enforcement hearing warrant for the debtor’s arrest.
 
Our comment: If the debtor is a company and the director/s have not been served personally then an arrest warrant for not attending the enforcement hearing cannot be issued.