ENFORCEMENT OF JUDGMENTS ACT 1991 - SECT 6
ENFORCEMENT OF JUDGMENTS ACT 1991 - SECT 6
(1) The court may, on
application by a judgment creditor (which may be made without notice) order
that—
(a)
money owing or accruing to the judgment debtor from a third person; or
(b)
money of the judgment debtor in the hands of a third person (including money
in an ADI account),
be attached to answer the judgment and paid to the judgment creditor.
(1a) Except where the
court orders otherwise, the garnishee must pay money subject to attachment
directly to the judgment creditor in accordance with the rules of the relevant
court.
(2) Without limiting
the orders that may be made under subsection (1) but subject to
subsections (2a) and (2b), the court may, without the consent of the
judgment debtor and, to the extent the court considers appropriate, make an
order under subsection (1) attaching salary or wages.
(2a) The amounts under
1 or more orders made in accordance with subsection (2) must not, in
total, reduce the net weekly amount of any wage or salary received by the
judgment debtor from the garnishee to less than the designated amount.
(2b) In particular, if
the court is satisfied that the amount earned by a judgment debtor in salary
or wages varies significantly from period to period during a year (for
example, due to the casual nature of their employment), the court must take
that matter into account in order to ensure that the amounts under 1 or
more orders made in accordance with subsection (2) do not, in total,
reduce the net weekly amount of any wage or salary received by the judgment
debtor from the garnishee to less than the designated amount during the period
to which the order or orders relate.
(2c) An order may be
made under subsection (1) attaching money held in a term deposit.
(2d) For the purposes
of subsection (2c), an order attaching money held in a term deposit
attaches to the term deposit at the time the order is made (whether or not the
term deposit has matured) but the liability to pay the garnisheed amount is
not incurred until the term deposit matures or is terminated by the debtor.
(3) If an order is
made under this section on an application made without notice to the judgment
debtor or the garnishee (or both), the following provisions apply:
(a) the
order will operate to restrain the garnishee from dealing with money to which
the order relates until both the judgment debtor and the garnishee have had an
opportunity to be heard in the proceedings;
(b) the
court will adjourn the proceedings to give the judgment debtor and the
garnishee an opportunity to be heard;
(c) at
the adjourned hearing the court will allow the judgment creditor and the
garnishee to give evidence or make representations (or both);
(d)
after consideration of the evidence and representations (if any), the court
will confirm, vary or revoke the order.
(4) In deciding
whether to make, vary or confirm an order under this section affecting money
of a natural person, the court should have due regard to any evidence placed
before it as to—
(a) the
judgment debtor's means of satisfying the judgment; and
(b) the
necessary living expenses of the judgment debtor and his or her dependants;
and
(c)
other liabilities of the judgment debtor.
(5) An order under
this section may authorise the garnishee to retain from the money subject to
attachment a reasonable sum, fixed in the order, as compensation for the
garnishee's expenses in complying with the order.
(6) If the garnishee
does not comply with an order under this section—
(a) the
garnishee commits a contempt of the court by which the order was made; and
(b) the
garnishee becomes personally liable for payment to the judgment creditor of
the amount subject to attachment.
(7) If, because a
garnishee order has been made in relation to an employee, the employer—
(a)
dismisses the employee; or
(b)
injures the employee in employment; or
(c)
alters the employee's position to the employee's prejudice,
the employer is guilty of an offence.
Penalty: Division 5 fine.
(7a) In this
section—
"designated amount" means the amount that is 90% of the weekly national
minimum wage set out in the national minimum wage order made (from time to
time) under section 285 of the Fair Work Act 2009 of the
Commonwealth;
"net weekly amount", in relation to any wage or salary payable to a judgment
debtor, means the amount payable each week to the judgment debtor after
deducting any taxes or other sums that, pursuant to any Act (including any
Commonwealth Act), are required to be deducted from any such money.