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The new enforcements Act for civil judgments

Friday, April 15, 2016

The Civil Judgments Enforcement Act 2004 (WA), otherwise known as the CJEA, came into effect on 1 May 2005. It replaced what was a widely criticised system of enforcing judgments in the civil courts which were seen to be inefficient and confusing to users given that there were separate pieces of legislation governing the procedures in the superior courts and the lower courts.   

Section 5 of the Act specifies that the Act applies to any judgment made in the civil jurisdiction of the Supreme, District or Magistrates Courts of Western Australia.

Section 7(1) of the Act abolishes  writs, warrants and orders that, immediately before 1 May 2005, could be issued or made at common law or in equity or under a written law:

(a) to enforce or execute a judgment of a court; or

(b) in aid of a writ, warrant or order to enforce or execute a judgment of a court.

Section 7(2) supports this by providing that common law rules, which are substantially similar to an order made under the Act, continue to apply to the extent they are consistent with the Act.

Section 9(1) provides that any application to a court in relation to a judgment must be made to the court and the registry that gave the judgment. Subsection 1 also contemplates the transfer of “Files” between registries so that applications can be made at another registry under circumstances such as parties changing their addresses.

Section 10 allows the court to make an order as to who is to pay the costs of proceedings.

Section 11 provides that a judgment has effect on the date that it is given unless the court provides otherwise and the date of judgment is not affected by the commencement of an appeal. This section reflects the accepted common law position that even though a judgment may have to be rendered into a written form, it takes effect from the time it is orally pronounced or delivered in writing.

Section 12 provides that enforcement action on a judgment cannot be taken if 12 years have elapsed since the date of judgment.

Section 13 provides that in certain circumstances leave of the court must be obtained before an order can be made to enforce a judgment.

Section 15 allows a person to apply for an order suspending the enforcement of a judgment.

Section 16 provides that a suspension order has effect according to its contents and precludes the making of enforcement orders whilst the suspension order is in effect. Any preexisting enforcement orders cease to have effect or are limited by the suspension order.

There are various types of judgments such as judgments to do or refrain from doing an act, judgments relating to the possession of property and judgment requiring the payment of money from one party to another.

Part 4 of the Act deals with the enforcement of monetary judgments. The enforcement orders that available under this Part include orders for the payment of money by instalments or in a lump sum, appropriation of earnings or debts, seizure and sale of property and the appointment of a receiver.

Part 5 of the Act deals with the enforcement of non-monetary judgments. Non-monetary judgments are of the nature of orders of the court requiring a party to do an act such as to deliver up property, or to cease doing an act or not to do an act. Under the old system, all three civil courts had an enforcement process of the nature of a warrant of delivery which required a party to deliver up possession of property other than land, for example, a motor vehicle. The three courts also had a process of the nature of a warrant of possession that required a party to deliver up possession of land that may or may not have had a house or buildings upon it. Division 1 of Part 5 reforms this process by combining the two into a new enforcement process known as a property (seizure and delivery) order.

Part 6 of the Act contains Miscellaneous enforcement provisions. The most notable of these are:

Section 102, which stipulates that a property (seizure and sale) order, a property (seizure and delivery) order and warrants to arrest a person issued under the Act has effect for 12 months and makes provision for an order to be renewed for a further 12 month period.

Section 103, which allows a person who has obtained an order under the Act or is affected by an order to apply to the court to have it suspended, amended or cancelled and the court may

make such an order on terms that are just. The Section addresses a variety of situations that may require intervention of an enforcement order, either temporarily or permanently.

Part 7 of the Act deals with Administrative matters. This part outlines the roles played by the Sheriff’s Office and bailiffs in the enforcement of judgments under the Act.

Part 8 of the Act deals with miscellaneous matters such as the obligations upon the Sheriff and bailiffs to carry out orders, and the making of regulations.

The First and only Schedule of the Act makes provision for a number of assumptions that are to be made and matters to be disregarded in determining whether money held for a person by a financial institution in the name of a particular person and whether that money can be taken by the Court and applied to pay a sum owing to another person.

Only time will tell whether the advent of the new system typified by The Civil Judgments Enforcement Act 2004 (WA) improves efficiency in how civil judgments are enforced in the state of Western Australia. One thing is for sure, the signs look promising.

Liability limited by a scheme approved under Professional Standards Legislation.

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