AUSTRALIA Law and Practice Contributed by: Joachim Delaney and Ranjani Sundar, HFW
Any leave application should be accompanied by an affidavit or evidence in support. Similar to Part 11A of the UCPR, Division 10.6 deals with the operation of the Hague Convention on the service of an originating process in the Federal Court of Australia, offering an alternative method of service of judicial documents outside Aus - tralia in countries that are a party to the Hague Convention. Alternatively, for countries that are not a party to the Hague Convention, service of judicial docu - ments will need to be made through a private process server or local agent if this method of service is accepted by the receiving country. If this method of service is not accepted by the receiving country, diplomatic channels or bilat - eral agreements will need to be utilised through the assistance of the Department of Foreign Affairs and Trade. In cases where the defendant fails to make a payment within the timeframe set by the court, or at all, the claimant may take steps to enforce the judgment. Writ of Execution of Property Pursuant to Section 106(1)(a) of the Civil Proce - dure Act 2005 (NSW), a writ for the levy of prop - erty is another form of enforcement whereby the sheriff’s office is ordered by the court to seize and sell property owned by the judgment debtor. Property that can be seized includes: • money, cheques, bonds and securities; • personal property in which the debtor has a beneficial interest; and 5. Enforcement 5.1 Methods of Enforcement
• land (where the judgment is regarding more than AUD10,000). It is important to note that there are a number of items protected from seizure under Australian law (for example, kitchen items, safety equip - ment, tools of trade to enable the debtor to earn an income). The judgment debtor’s property is bound to the sheriff’s office from the time the writ is delivered to the sheriff and is valid for 12 months from the date of issue. The money that is obtained from the sale of the property is utilised to pay off the outstanding judgment debt. Writ of Possession of Property Similar to a writ for the levy of property, a writ for possession of property relates to the seizure by the sheriff’s office of real property in cases where the proceeds from the sale of the personal prop - erty of the judgment debtor are insufficient to meet the outstanding judgment debt. The court must authorise the sheriff’s office, which it will be reluctant to do (given the gravity of the process) if there are alternate means by which the debt A garnishee order is commonly sought to enforce a judgment debt against a creditor to recover money from third parties, including employers, banks and other financial intermedi - aries, who hold money of the judgment debtor, such as the debtor’s wages, bank account or others who owe the debtor money. Pursuant to Section 106(1)(b) of the Civil Procedure Act 2005 (NSW), the court can direct a third party who owes money to the judgment debtor to pay the judgment creditor directly. Notably, where a third party fails to comply with a garnishee order, the could be satisfied. Garnishee Orders
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