VIC: Claimant Enforces the Determination
- Take the adjudication certificate to the appropriate Court and complete an affidavit form which is available at the Court. In the affidavit you need to swear whether any money has been paid to you by the respondent which would reduce the amount owed by virtue of the adjudication determination.
- 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 your chosen enforcement option at the appropriate Court with the assistance of Court Registry staff.
Courts of competent jurisdiction in which to file the adjudication certificate and affidavit of debt are:
- Magistrates' Court not exceeding $100,000
- County Court for unlimited amounts
- Supreme Court in excess of $200,000.
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, County 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.
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.
The type of enforcement proceedings that may be undertaken will vary depending on whether the respondent is an individual or a company. 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.
- Payment of a Money Order by installments: 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 County 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 adjudicated 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.
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 are not trained to provide information on enforcement options and can't assist in this regard.
What If the Respondent leaves Victoria? If the respondent/defendant has left Victoria, 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 respondent's action regardless of their whereabouts.
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.