- Take the adjudication certificate, along with the affidavit form accompanying the certificate, to the appropriate Court and complete the affidavit form.
- With assistance of Court Registry staff, have the adjudication certificate registered as a judgment of the Court. This judgement will result in obtaining a money order.
- Select an option for enforcement of the money order (refer notes below). Legal advice or other assistance may be sought. Court Registry staff cannot assist in this decision.
- Commence enforcement option at the appropriate Court with the assistance of Court Registry staff.
Step 1
Courts of competent jurisdiction in which to file the adjudication certificate and affidavit of debt are:
- Magistrates Court not exceeding $50,000
- District Court not exceeding $250,000
- Supreme Court in excess of $250,000
The following notes will assist in the completion of the affidavit form.
- Indicate the court where the affidavit is being lodged. For example the Magistrates Court, District Court or Supreme Court.
- The affidavit is to accompany the filing of an adjudication certificate. It must be sworn on the day upon which the adjudication certificate is filed in the court. Usually, there will be an officer of the Court before whom the affidavit can be sworn. It can also be sworn before a Justice of the Peace or a solicitor.
- This sample form is provided to assist a claimant to make an affidavit. Use of this form is not mandatory but is recommended.
Step 2
Present the adjudication certificate and the affidavit to an officer of the Court. Pay the court filing fee and the officer will register the certificate as a Court judgement.
Step 3
The type of enforcement proceedings that may be undertaken will vary depending on whether the respondent is an individual or a company.
A money order can be enforced in the Courts pursuant to the provisions of the Uniform Civil Procedure Rules 1999 or pursuant to the provisions of the Corporations Act 2001.
According to Queensland Court procedures, a claimant must initiate enforcement proceedings against the respondent/defendant in the Court that corresponds with:
(a) The location of work undertaken, or
(b) The Respondent’s residential address.
Claimants should consult the Uniform Civil Procedure Rules 1999 for more information.
Queensland Courts web site provides a map of the districts for the Magistrates, District and Supreme courts in Queensland that can assist you in determining which courthouse is appropriate in this regard. The Courts web address is: www.courts.qld.gov.au
Enforcement against an individual:
The money order may be enforced in the Courts against an individual by an:
- Enforcement hearing, or
- Enforcement warrant.
The claimant may also rely on the money order to issue a bankruptcy notice against the Respondent and pursue bankruptcy proceedings in the Federal Magistrates Court.
Enforcement Hearing Summons:
If the claimant has little or no knowledge of the financial status of the respondent, the claimant may apply to the Court for (or the Court Registrar may order) an enforcement hearing to obtain the necessary information to enforce the debt.
At an enforcement hearing, the person to whom an enforcement hearing summons is directed (the respondent) must attend before the Court to give information, answer questions, produce documents and complete a statement on oath of that person’s financial position. This may also include a director of a company.
Enforcement warrants:
Once the necessary information is either known or obtained, an enforcement warrant may be applied for and issued by the Courts and may take various forms including:
- Seizure and Sale of Property:
An enforcement officer may take possession of the property of the respondent and sell it by public auction. This includes all real and personal property in which the respondent has a legal or beneficial interest, other than exempt property. Proceeds from the auction are then paid to the claimant to satisfy the debt.
- Redirection of Debts:
The Court may order that the debts payable to the respondent by a third party be redirected to the claimant. The third party must pay the debt in accordance with the Court order.
- Redirection of Earnings:
The Court may order that earnings (including wages, salary, bonuses, commission and overtime pay) payable to the respondent be redirected to the claimant. This does not apply to social security payments. Refer Chapter 19, Part 6, Rules 855-867 of the Uniform Civil Procedure Rules 1999.
- Payment of a Money Order by Instalments:
This enables the respondent to pay the debt in a series of payments over a period of time.
- Charging Orders:
The Supreme Court may order that all or part of the respondent’s legal or equitable interest in certain property, such as debentures, shares, stocks or securities be subject to a charge. Accordingly, the claimant becomes a secured creditor of the respondent.
- Stop Orders:
A stop order prevents the payment, delivery or transfer of money or security without notice to the claimant.
- Appointment of a Receiver:
The Supreme and District Courts may appoint a Receiver to receive an amount payable under a judgment if it is impractical to enforce payment in any other way. A creditor may apply for an enforcement warrant without notice to the respondent and on the satisfaction of certain conditions.
Enforcement against a corporation:
In addition to the procedures outlined above, and with the exception of bankruptcy, the money order may be enforced by serving a statutory demand on the Respondent Corporation. If the corporation does not pay the adjudication amount within the period for compliance with the statutory demand, the corporation is taken to have failed to comply with the statutory demand and an application may be made to the Supreme Court to wind up the corporation in insolvency.
On application, the Court may appoint an external administrator, such as a Liquidator, Provisional Liquidator or Receiver, to the corporation pursuant to the provisions of the Corporations Act 2001.
In essence, the effect of the provision of an external administrator to the corporation is that the daily administration of the corporation is taken out of the hands of the directors. The external administrator will determine whether sufficient funds exist for payments to be made to creditors of the corporation. 
Step 4
Court registry staff can assist in the commencement of enforcement action, however they will not assist in the selection of the most appropriate method of enforcement.
Choice in deciding how to enforce the money order created as a result of the judgment may require receipt of independent advice.
This advice does not necessarily need to be of a legal nature, although if the money order is for a substantial amount, it may be best to consult with a lawyer.
If the claimant is a member of a contractor association, the association may be able to provide assistance in this regard. Furthermore, there are a number of industry consultants that for a fee will provide assistance and guidance.
Adjudicate Today staff and staff of the Adjudication Registry are not trained to provide information on enforcement options and can't assist in this regard.
What If the Respondent leaves Queensland?
If the respondent/defendant has left Queensland it is still possible to pursue them for payment. A ‘Notice to the Defendant’ is attached to the claimants other enforcement documents which demands the respondents action regardless of their whereabouts.
Setting aside the Judgement
In rare cases, a respondent may make application to set aside the judgement for the adjudicated amount. However to do so, the respondent must pay into court as security the unpaid portion of the adjudicated amount. This eliminates the advantage, which a respondent had when the respondent could retain the disputed amount while legal proceedings were in progress.
Generally a court is unlikely to intervene to prevent the enforcement of an adjudication decision. Such applications would normally be made to the Supreme Court and are expensive to run and difficult to win. However some grounds on which a court may intervene include:
- there was no construction contract (within the meaning of the Act) between the parties;
- the respondent was not served with a payment claim under the Act;
- the claimant is guilty of fraud.
Generally adjudicator error, unless it goes to grounds of jurisdiction, is insufficient to attract court intervention. In most cases it is quicker and more cost effective to comply with the adjudication decision and sue separately for repayment of any alleged overpayment. While in all such matters legal advice should be taken, we strongly advise that the advice is taken from a lawyer familiar with the operation of the Act.
Once the respondent makes full payment to the claimant, including adjudicator fees and any interest, the payment process under the Act is complete.
At conclusion of the process, both the respondent and claimant retain their legal rights to pursue any remaining grievances whether it be by litigation or exercising any other dispute resolution rights as described in the contract.
The payment process under the Act is complete.
