Uniform Civil Procedure Rules 1999 (UCPR Qld) - Digest
back to table of provisionsChapter 19 – Enforcement of Money Orders
- Part 1 - Preliminary
- [793] Definitions for ch 19
- [794] Enforcement of money orders
- [795] Enforcement by or against a non-party
- [796] Conditional order
- [797] Amount recoverable from enforcement
- [798] Separate enforcement for costs
- [799] Enforcement period
- [800] Stay of enforcement
- [801] Where to enforce money order
- [802] Enforcing money order in different court
- [803] Purpose of enforcement hearing
- [804] When an enforcement hearing may take place
- [805] Application for end of trial enforcement hearing
- [806] Outcome of application for end of trial enforcement hearing
- [807] Statement of financial position
- [808] Enforcement hearing after money order is made
- [809] Person to whom enforcement hearing summons may be directed and servie
- [810] Location for enforcement hearing
- [811] Conduct money
- [812] Subpoena
- [813] Enforcement hearing
- [814] Orders at enforcement hearing
- [815] Failure or refusal in relation to statement of financial position or enforcement hearing
- [816] Enforcement hearing warrant
- [817] Procedure
- [818] Deceased enforcement debtor
- [819] Application to set aside enforcement
- [820] Issue and enforcement of enforcement warrant
- [821] Renewal of enforcement warrant
- [822] Return of particular enforcement warrant
- [823] Priority of enforcement warrants
- [824] Enforcement throughout Queensland
- [825] Concurrent enforcement warrants – Magistrates Court
- [826] Enforcement beyond the district
- [827] Cross orders
- [828] Seizure of property under enforcement warrant
- [829] Order of selling property
- [830] Payment by enforcement debtor before sale
- [831] Storage before sale
- [832] Nature of sale
- [833] Sale at best price obtainable
- [834] Advertising
- [835] Postponement of sale
- [836] Accountability for, and distribution of, money received
- [837] Reserve price provisions
- [838] Enforcement debtor dealing with charged property
- [839] Application of pt 5
- [840] Debts that may be redirected under enforcement warrant
- [841] Attendance of, or information about, the enforcement debtor
- [842] When debt redirected under enforcement warrant
- [843] Payment to enforcement debtor despite redirection
- [844] Third party disputes liability
- [845] Claim by other person
- [846] Discharge of the third person
- [847] Application of div 2
- [848] Procedure for issue of enforcement warrant for regular redirection
- [849] Content of enforcement warrant for regular redirection
- [850] Service of enforcement warrant for regular redirection
- [851] Financial institution to make payments
- [852] Enforcement debtor not to defeat enforcement warrant
- [853] No other enforcement while regular redirection
- [854] Setting aside, suspending, or varying enforcement warrant for regular redirection
- [855] General
- [856] Procedure for issue of enforcement warrant redirecting earnings
- [857] Attendance of, or information about, the enforcement debtor
- [858] Content of enforcement warrant redirecting earnings
- [859] Service of enforcement warrant redirecting earnings
- [860] Employer to make payments
- [861] No enforcement while redirection of earnings
- [862] Setting aside, suspending, or varying enforcement warrant redirecting earnings
- [863] Cessation of enforcement warrant redirecting earnings
- [864] Two or more warrants redirecting earnings in force
- [865] Person served is not enforcement debtor’s employer
- [866] Person ceases to be enforcement debtor’s employer
- [867] Directions
- [868] Order may authorise payment by instalments
- [869] Prerequisites for instalment order
- [870] No enforcement warrant to issue while instalment order
- [871] Discharge or variation of instalment order
- [872] Cessation of instalment order
- [873] Omitted
- [874] Application of pt 8
- [875] Issue of warrant
- [876] Effect of warrant
- [877] Enforcement debtor dealing with charged property
- [878] Issuer dealing with charged property
- [879] Application to enforce charge
- [880] Partnership property
- [883] Application of pt 10
- [884] General provisions relating to receivers apply
- [885] Enforcement of a money order
- [886] Relevant considerations for appointment
- [887] Inquiry
- [888] Receiver’s powers
- Division 1 - General
- Division 2 – Regular redirections from financial institutions
[793] Definitions for ch 19 go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[794] Enforcement of money orders go to top
In Bakir v Doueihi [2001] QSC 414, [29] Atkinson J held that contempt proceedings are not available for breach of a money order under the UCPR. Rather, the enforcement procedure set out in Chapter 19 must be followed.
However, consider further the decision in [2014] 203 LGERA 117 [2014] QCA 215, [73] as to the court’s inherent jurisdiction to make such an order where Muir JA (Gotterson JA and A Lyons J agreeing), said:
“in the absence of clear and unequivocal language compelling a contrary conclusion, a statute should not be taken as confining a superior court’s inherent powers to punish for contempt. In my view, it would be extraordinary if rules of court which did not refer to the court’s inherent jurisdiction or purport to prescribe the only penalties which could be imposed, could be interpreted as confining the court’s inherent powers to punish for contempt of court.”
[795] Enforcement by or against a non-party go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[796] Conditional order go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[797] Amount recoverable from enforcement go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[798] Separate enforcement for costs go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[799] Enforcement period go to top
Even if a party has satisfied the court of the matters in r 799(4), it does not follow that the court is bound to grant leave. The discretion is unfettered: Cyran v Nelson[2014] QSC 291, p.4 (Henry J).
There is nothing in r 799 to displace the ordinary principle that it is for an applicant to satisfy the court that an application made ought be granted: Cyran v Nelson [2014] QSC 291, p.4 (Henry J).
While consideration of how compelling the reasons for the delay are may often be an important consideration, r 799 does not identify it as a determinative consideration. The unfettered discretion exercisable under r 799 inevitably requires consideration of all the relevant circumstances of the case. It cannot be doubted that the reasons for the delay are a relevant circumstance, but they will rarely, if ever, be the only relevant circumstance: Cyran v Nelson [2014] QSC 291, p.5 (Henry J).
Rule 799 sets out some minimum requirements for the grant of leave so that an order may be enforced, but these are not meant to be the only things the court can consider. A discretion still exists, and the court must consider all the relevant circumstances: Walkden v Council of the City of Townsville [2004] QDC 23, [25] (Brabazon QC DCJ).
Where damages are to be assessed, the judgment is not enforceable until that assessment is complete:Walkden v Council of the City of Townsville [2004] QDC 23, [27] (Brabazon QC DCJ).
[800] Stay of enforcement go to top
The discretion to order a stay of enforcement of a judgment under r 800 (and the court’s inherent jurisdiction to grant a stay) is unfettered and can be granted where it is appropriate to do so: Willemse Family Company Pty Ltd v Deputy Commissioner of Taxation [2003] 2 Qd R 334, [11] (Holmes J), citing Croney v Nand [1999] 2 Qd R 342, 348; Murdoch v Lake [2014] QSC 142, [10] (Alan Wilson J).
Rule 800 authorises “a court” to stay the enforcement of a “money order”. The ordinary and natural reading of this provision would suggest that the power conferred by r 800 is conferred on the court that made the money order in question. It is gravely doubtful that a Court of Appeal has the authority to grant the stay of an order made in the District Court: R J Neller Building Pty Ltd v Ainsworth [2009] 1 Qd R 390; [2008] QCA 397, [45]-[46] (Keane JA, Fraser JA and Fryberg J agreeing).
Any application to stay a money order should be made to the court with the appropriate monetary jurisdiction to enforce the money order, consistent with the intention expressed by r 801: Randell v Charter [2003] QCA 180, [35] (Jerrard JA).
Particular considerations apply to the exercise of discretion pursuant to r 800 in respect of an application to stay tax recovery proceedings. In those cases, the relevant considerations are those that were summarised by French J in Snow v Deputy Commissioner of Taxation (1987) 14 FCR 119, 139: Deputy Commissioner of Taxation v Martin Jennings [2005] QSC 312, p.3 (P McMurdo J); [2010] 80 ATR 109 [2010] QCA 217, [20] (Chesterman JA, McMurdo P and Muir JA agreeing).
There is no reason to doubt that the Court has power to grant a stay under r 800 of a judgment entered pursuant to the Building and Construction Industry Payments Act 2004 (Qld): Queensland Bulk Water Supply Authority v McDonald Keen Group Pty Ltd (in liq) [2009] QSC 165, [106] (P Lyons J).
An order for the payment of costs in an unspecified sum is not a “money order”, but may result in a money order being made after the costs have been assessed: Lee v Abedian [2017] QSC 22 (Applegarth J) at [7].
The power under r 800 may be exercised in relation to money orders arising from an interlocutory costs order. The ultimate issue is whether it is appropriate to grant a stay in the particular circumstances of the case, taking into account the need to do justice between the parties by balancing their competing rights and interests. An applicant for a stay does not need to show special or exceptional circumstances. Nevertheless, the onus is upon the applicant to demonstrate that it is appropriate for a stay to be granted. In general, courts should not be disposed to delay the enforcement of their orders, and a successful party in litigation is entitled to the fruits of a judgment. Delay in bringing an application is a factor against the granting of a stay: Lee v Abedian [2017] QSC 22 (Applegarth J) at [4], [8].
[801] Where to enforce money order go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[802] Enforcing money order in different court go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[803] Purpose of enforcement hearing go to top
The information referred to in r 803 is that which will enable a judgment creditor to best secure payment of the monies owed and so satisfy the judgment debt: Remely v O’Shea (No 3) [2009] QSC 110, [21] (McMeekin J).
[804] When an enforcement hearing may take place go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[805] Application for end of trial enforcement hearing go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[806] Outcome of application for end of trial enforcement hearing go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[807] Statement of financial position go to top
The requirement that the date of the receipt of the last four payments be included in the judgment debtor’s financial statement is to aid the enforcement creditor in determining whether there is any point in proceeding further. Rule 807 does not limit the enforcement creditor’s enquiry as to a judgment debtor’s financial position to those four payments: Remely v O’Shea (No 3) [2009] QSC 110, [24] (McMeekin J), referring to the former r 809(2).
[808] Enforcement hearing after money order is made go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[809] Person to whom enforcement hearing summons may be directed and servie go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court. Note that this rule was amended in 2010; much of the previous r 809 is now contained in r 807.
[810] Location for enforcement hearing go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[811] Conduct money go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[812] Subpoena go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[813] Enforcement hearing go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[814] Orders at enforcement hearing go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[815] Failure or refusal in relation to statement of financial position or enforcement hearing go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[816] Enforcement hearing warrant go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[817] Procedure go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[818] Deceased enforcement debtor go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[819] Application to set aside enforcement go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[820] Issue and enforcement of enforcement warrant go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[821] Renewal of enforcement warrant go to top
Rule 821 provides for the ability of the court to extend the warrant where the application is made prior to the expiration of the warrant. It does not state that an application to extend time may not be made after the expiration of the warrant. The court has the power to extend or renew an enforcement warrant notwithstanding that it has expired: Re Tantner (bankrupt); Ex parte Worrell v Issitch [2001] FCA 685, [4]-[5] (Spender J).
[822] Return of particular enforcement warrant go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[823] Priority of enforcement warrants go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[824] Enforcement throughout Queensland go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[825] Concurrent enforcement warrants – Magistrates Court go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[826] Enforcement beyond the district go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[827] Cross orders go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[828] Seizure of property under enforcement warrant go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[829] Order of selling property go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[830] Payment by enforcement debtor before sale go to top
This rule only applies to enforcement of money orders and there is no equivalent provision with respect to the enforcement of non-money orders: Quaresmini v Perpetual Trustee Company Ltd [2011] QCA 74, p.5 (Fraser JA).
[831] Storage before sale go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[832] Nature of sale go to top
An enforcement officer who feels they have a reasonable price, but is concerned about that or any other term of sale, can seek the court’s concurrence with what they propose to do by seeking an order under r 832(8)(c): Solomon v Corbel [2011] QMC 36, [42] (Costanzo JJ).
[833] Sale at best price obtainable go to top
Rule 833 does not give the court the power to order the signing of a contract for sale, rather it provides for the obtaining of an order to sell property at the best price obtainable. When compared with r 832, the best price obtainable may be less than a sale to the highest bidder where there is a reserve price set for the auction: Solomon v Corbel [2011] QMC 36, [30], [32] (Costanzo JJ).
[834] Advertising go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[835] Postponement of sale go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[836] Accountability for, and distribution of, money received go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[837] Reserve price provisions go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[838] Enforcement debtor dealing with charged property go to top
Repealed.
Division 1 - General
[839] Application of pt 5 go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[840] Debts that may be redirected under enforcement warrant go to top
Under r 840(1), a court may issue an enforcement warrant authorising redirection to an enforcement creditor or specified debts belonging to an enforcement debtor from a third person not yet in existence but likely to become payable to the enforcement debtor and certainly payable when they do come into existence. However r 840(3) requires that by the time of service of the enforcement warrant the debt must be in existence and payable to the enforcement debtor: Saramick Pty Ltd v Queensland Quarries Pty Ltd [2006] QSC 215 (Helman J).
[841] Attendance of, or information about, the enforcement debtor go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[842] When debt redirected under enforcement warrant go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[843] Payment to enforcement debtor despite redirection go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[844] Third party disputes liability go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[845] Claim by other person go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[846] Discharge of the third person go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
Division 2 – Regular redirections from financial institutions
[847] Application of div 2 go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[848] Procedure for issue of enforcement warrant for regular redirection go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[849] Content of enforcement warrant for regular redirection go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[850] Service of enforcement warrant for regular redirection go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[851] Financial institution to make payments go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[852] Enforcement debtor not to defeat enforcement warrant go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[853] No other enforcement while regular redirection go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[854] Setting aside, suspending, or varying enforcement warrant for regular redirection go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[855] General go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[856] Procedure for issue of enforcement warrant redirecting earnings go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[857] Attendance of, or information about, the enforcement debtor go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[858] Content of enforcement warrant redirecting earnings go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[859] Service of enforcement warrant redirecting earnings go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[860] Employer to make payments go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[861] No enforcement while redirection of earnings go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[862] Setting aside, suspending, or varying enforcement warrant redirecting earnings go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[863] Cessation of enforcement warrant redirecting earnings go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[864] Two or more warrants redirecting earnings in force go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[865] Person served is not enforcement debtor’s employer go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[866] Person ceases to be enforcement debtor’s employer go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[867] Directions go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[868] Order may authorise payment by instalments go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[869] Prerequisites for instalment order go to top
Rule 869(2) stipulates that the court must be satisfied that the instalment order will not impose “unreasonable hardship” on the enforcement debtor. The Rules do not provide support for the proposition that the consideration of hardship to the debtor is to be given greater weight than any other consideration, such as the public interest in enforcing money orders efficiently and expeditiously: Bucknell v Robins [2008] QCA 214, [15] (Fraser JA, de Jersey CJ and Lyons J concurring).
[870] No enforcement warrant to issue while instalment order go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[871] Discharge or variation of instalment order go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[872] Cessation of instalment order go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[873] Omitted go to top
Omitted
[874] Application of pt 8 go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[875] Issue of warrant go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[876] Effect of warrant go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[877] Enforcement debtor dealing with charged property go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[878] Issuer dealing with charged property go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[879] Application to enforce charge go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[880] Partnership property go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[881] Money in Court go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[882] Stop orders on money and securities in court go to top
Nothing suggests that the power under r 882 is confined to an order which is applied for before a judgment or final order in a proceeding is made: Bechara v Sotrip Pty Ltd (In Liquidation) (No 2) [2013] QSC 160, [20] (Jackson J).
[883] Application of pt 10 go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[884] General provisions relating to receivers apply go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[885] Enforcement of a money order go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[886] Relevant considerations for appointment go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[887] Inquiry go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[888] Receiver’s powers go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[889] Return of enforcement warrant go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.