Once the trial has finished the Magistrate will decide if the debt is owed to you. Whoever receives judgment in their favour has “won” the case.
If you have won, you should request the Magistrate award costs and interest on your claim. Judgment in your favour may be for the entire debt or part of it. A judgment in your favour means that the court recognises that you are owed the debt and that it must be paid.
However, a judgment is no guarantee that money will be paid and it is up to you to enforce the judgment. Even with a court judgment, you cannot force someone to pay if they do not have the money.
Enforcing judgmentMany defendants will pay once judgment has been given but you may need to remind the debtor to pay the debt. If you do not think the debtor will pay, you can commence enforcement proceedings immediately after judgment. You generally have only six years from the date of the judgment to start enforcement proceedings [see Magistrates Court (Civil) Rules 2013 (SA) r 121]. A court judgment will be entered on the credit record of the debtor for five years. This means they may not be able to obtain credit or borrow money. In many cases, this may be incentive enough for them to pay the debt.
Investigation SummonsThe first process in the enforcement of a judgment for a debt for less than $10,000 is an investigation hearing. If the debtor is present at court, you can ask the Magistrate to conduct an investigation hearing into the defendant’s financial position immediately after giving judgment. Otherwise, to instigate an investigation hearing you will need to fill out and file a Request to Registrar (Form 18). A date for the hearing will then be set. You can obtain a Form 18 from the Magistrates Court Registry or from the Magistrates Court website.
If the debtor owns real estate or other types of property of value, a Warrant of Sale of the property can be requested (if the debt is over $10,000). If the debt is less than $10,000 but you want to ask for a Warrant of Sale as the first step, you need to make an application to explain why you will not accept a payment arrangement from the debtor.
Before the Investigation Summons hearing, the debtor will fill out a form detailing their financial situation. This will include how much they spend on rent, bills, food and other expenditure. During the hearing you will have a chance to question the debtor on this information. The Registrar in charge of the hearing will then usually make an order for the debt to be paid in instalments. The court will only order the debtor to pay instalment amounts they can afford. If the court decides the debtor has no means to pay the debt, you may ask for an adjournment (usually for a year) so that the court can reassess the debtor’s circumstances at a later date.
Examination hearingIf the debtor fails to comply with two payments under the order made at the investigation hearing, you can apply for an examination hearing by filling out a Request to Registrar (Form 18). At this hearing the debtor will be asked to explain why he or she has not complied with the order from the investigation hearing. If the creditor’s circumstances have changed then the instalments to be paid under the order may be modified. If the debtor fails to appear at the investigation summons hearing, you can ask for an order that a Warrant of Arrest to be issued, and you will have 28 days to go to the Registry to request the issue of the warrant. There are additional costs associated with issuing a warrant.
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.