Enforcement Warrant for Redirection of Earnings

A warrant for redirection of earnings is an enforcement option pursuant to the Uniform Civil Procedure Rules 1999 (QLD) (“UCPR”).

An enforcement warrant for redirection of earnings is a way of enforcing a judgment or enforcing a registered QCAT decision.

A warrant for redirection of earnings allows the creditor to enforce an enforceable money order over the wages or salary earned by the debtor.

A warrant for redirection of earnings is a warrant directed at both the debtor and the debtor’s employer, directing the debtor’s employer to pay part of the debtor’s wages or salary directly to the creditor.

Just like a the warrant for seizure and sale of property, a warrant for redirection of earnings is obtained by making an application to the Court.  The application consists of:

1. The application;
2. A statement in support of the application; and
3. A draft enforcement warrant.

When the Court issues the UCPR enforcement warrant for redirection of earnings, it then needs to be served on the debtor and the debtor’s employer.

This article will give you all the information needed to apply for an enforcement warrant for redirection of earnings, and give you hints and tips to avoid pitfalls.

There are a number of difficult steps that need to happen before an employer must comply with an enforcement warrant for redirection of earnings. We strongly recommend engaging a legal professional

Enforcement Warrant for Redirection of Earnings

Rule 855(1) of the UCPR says:

A court may issue an enforcement warrant authorising redirection to an enforcement creditor of particular earnings of an enforcement debtor from a third person.

For the Court to issue an enforcement warrant for redirection of earnings the creditor will need:

1. An enforceable money order;
2. An application – Form 9;
3. A draft warrant – Form 78;
4. A statement in support of the application – Form 74;
5. A notice to employer for redirection of earnings – Form 79;
6. A notice that debtor is not an employee – Form 80; and
7. To serve the debtor and the debtor’s employer.

We will break each of these steps down in more detail below.

An Enforceable Money Order

Rule 793 of the UCPR says:

“enforceable money order” of a court, means—

(a) a money order of the court; or

(b) a money order of another court or tribunal filed or registered under an Act in the court for enforcement.

Schedule 3 of the UCPR defines an order to mean:

“order” … includes a judgment, direction, decision or determination of a court whether final or otherwise.

An enforceable money order is a money judgment from the Court, or a decision in QCAT registered in the Magistrates Court.  A QCAT decision which has not been registered in the Court is not an enforceable money order.

The Application – Warrant for Redirection of Earnings

The application for an enforcement warrant for redirection of earnings – Form 9 – outlines the order (or orders) that the plaintiff is asking the Court to make.

The application will say something like:

TAKE NOTICE that the plaintiff is applying to the Court for the following orders 

That pursuant to rules 855 and 856 of the UCPR an enforcement warrant for redirection to the plaintiff of earnings of the defendant from the defendant’s employer to satisfy the judgment amount. 

That the defendant pay the costs of the plaintiff for issuing the enforcement warrant fixed in the sum of $XXX.

The costs of the warrant are fixed at Schedule 2 of the UCPR depending on the amount of the claim – see item 15.

The application for an enforcement warrant for redirection of earnings also needs to state who the warrant needs to be served on – the debtor and the debtor’s employer.

What are “Earnings”?

It is also necessary to understand how “Earnings” have been defined.  This is in order to know what funds are available to the creditor from the debtor’s employer.

Rule 793 of the UCPR says:

“earnings” of an enforcement debtor, means any of the following that are owing or accruing to the enforcement debtor—

(a) wages, salary, fees, bonuses, commission, overtime pay or other compensation for services or profit arising from office or employment;

(b) pension, benefit or similar payment;

(c) annuity;

(d) an amount payable instead of leave;

(e) retirement benefit.

As you can see, the types of earnings that can attach are quite broad.

The Draft Warrant for Redirection of Earnings

The draft enforcement warrant for redirection of earnings has to be in the correct form – Form 78.  The draft Form 78 must contain the following information:

1. Name and address of the enforcement creditor;
2. Name and address of the enforcement debtor;
3. Name and address of the employer of enforcement debtor;
4. The judgment amount;
5. Less – any payments made;
6. Plus – interest; and
7. Plus – costs of the enforcement warrant.

Rule 858 of the UCPR also says that the draft warrant will also need to specify the following:

The total amount the enforcement debtor’s employer must deduct from the earnings of the enforcement debtor; and

The amount the enforcement debtor’s employer must deduct each pay day from the earnings of the enforcement debtor.

The judgment amount – is the amount on the judgment, default judgment, summary judgment or registered QCAT decision.

Less any payments made – means that any payments that have already been made as against the judgment debt are to be deducted on the date that payment was made.

Plus interest – means the amount prescribed in section 59 of the Civil Proceedings Act 2011 (QLD) and at paragraph 4 of the Supreme Court of Queensland Practice Direction Number 7 of 2013 – being 6% per annum above the cash rate at the Reserve Bank of Australia.

Plus costs of the enforcement warrant – means the amount fixed at Schedule 2 of the UCPR depending on the amount of the claim – see item 15.

A notice in Form 79 and a copy of Form 80 must also be served on the enforcement debtor’s employer.

Form 79 Notice to Employer

A Form 79 notice is a notice to employer for redirection of earnings.  It is essentially a notice which gives the debtor’s employer detailed instructions on how to comply with the warrant, and what to do if the enforcement debtor ceases working for the employer.

The Form 79 notice must be filed and a sealed copy served with the warrant to the debtor’s employer.

Form 80 Notice that Debtor is not Employee

A Form 80 notice is a notice that debtor is not an employee.  The Form 80 is a draft form which the employer can use to tell the creditor that the enforcement has never worked for the employer.

The employer must also serve a Form 81 if the debtor has ceased working for the employer at a certain date.  The Form 81 is called a notice of cessation of employment.

The creditor must serve a draft copy with the rest of the warrant documents on the employer.

The Court’s Discretion to Issue the Warrant

The issuance of the enforcement warrant for redirection of earnings is discretionary and in some instances the Court may not issue the warrant.

In ML Ubase Holdings Co Ltd v Trigem Computer Inc [2007] NSWSC 859 Brereton J said:

The making of a garnishee order absolute is discretionary …

The creditor must prove the particulars set out in rule 856(3) of the UCPR are satisfactorily met.

Rule 856(3) of the UCPR says that:

In deciding whether to issue an enforcement warrant authorising the redirection to the enforcement creditor of the enforcement debtor’s earnings, the court must have regard to the following—

(a) whether the enforcement debtor is employed and the enforcement debtor’s employer has been identified;

(b) whether the enforcement debtor has sufficient means of satisfying the order after deducting—

(i) the necessary living expenses of the enforcement debtor and the enforcement debtor’s dependants; and

(ii) any other known liabilities of the enforcement debtor;

(c) whether the amount of earnings to be redirected would impose unreasonable hardship on the enforcement debtor

Therefore, in the statement in support of the application, the creditor must show evidence of the above, and show that the debtor has sufficient means of satisfying the order.

A creditor will usually get this information at an enforcement hearing and/or the completed statement of financial position – as well as by independent enquiry.

There are a number of difficult steps that need to happen before an employer must comply with an enforcement warrant for redirection of earnings. We strongly recommend engaging a legal professional

The Statement in Support of the Warrant for Redirection of Earnings

The statement in support of an application for an enforcement warrant for redirection of earnings will need to provide the Court with evidence of what is required for the Court to issue the enforcement warrant for redirection of earnings.

Rule 817 of the UCPR outlines the other things that need to be included in the statement, being:

1. the date the money order was made;
2. the amount for which the order was made;
3. the date and amount of any payment made under the order;
4. the costs incurred in previous enforcement proceedings in relation to the order debt;
5. any interest due at the date the statement is sworn;
6. any other details necessary to calculate the amount payable under the order at the date the statement is sworn and how the amount is calculated;
7. the daily amount of any interest that, subject to any future payment under the order, will accrue after the date the statement is sworn; and
8. any other information necessary for the warrant being sought.

It is also a good idea to include the following:

1. The person making the statement and the authority they have (solicitor for the judgment creditor, judgment creditor, director of the judgment creditor);
2. Annex evidence of the judgment, decision, or enforceable money order;
3. Annex evidence of any payments made as against the judgment debt, or a statement that no payments have been made against the judgment debt;
4. Annex evidence and a statement supporting the calculation of costs and interest; and
5. Annex evidence and statements in support of the matters outlined in rule 856(3).

The evidence particularised at number 5 above will be gained by receiving the information needed in the statement of financial position, the enforcement hearing, and independent enquiry.

Statement of Financial Position & Enforcement Hearing

The enforcement hearing and the completed statement of financial position are ways of gathering the information required to enable the Court to exercise its discretion and issue the enforcement warrant for redirection of earnings.

The debtor is required to complete a statement of financial position is Form 71 for a person; or Form 71a for a company.  The statement of financial position is a document where the debtor has to provide detailed information about their assets and liabilities.

The debtor is supposed to provide the debtor with the completed statement of financial position within fourteen (14) days.  If they do not (and they usually do not) then this is the condition precedent for requesting that the Court summon them to an enforcement hearing.

The enforcement hearing is a hearing in open Court in which the debtor has to take the stand, under oath, and answer questions about the debtor’s financial position.  They are also required to provide the debtor with a completed statement of financial position.

The purpose of the enforcement hearing and the completed statement of financial position is to get information from the debtor, to provide to the Court, so that the Court will issue a warrant – in this case a warrant for redirection of earnings.  This information will often include payslips and bank account statements.

If the creditor is successful and has been issued with the enforcement warrant for redirection of earnings you then will need to serve the debtor and the debtor’s employer.

Service on the Debtor and the Employer

Rule 859 of the UCPR says that the enforcement warrant for redirection of earnings must be served on the enforcement debtor and the enforcement debtor’s employer.

The creditor must also serve on the enforcement debtor’s employer a notice in Form 79 and a copy of Form 80 as mentioned above.

An enforcement warrant for redirection of earnings is not an originating process and so personal service is not required.  Rule 112 prescribes how ordinary service is performed.  Ordinary service is most commonly performed by posting it to the relevant address, faxing the document to the person; or emailing the document to the person (if applicable).

Of course, to be 100% sure then you can always personally serve the documents.

Enforcement Warrant for Redirection of Earnings

If a creditor does everything correctly then the Court will issue the enforcement warrant for redirection of earnings.  Once properly served on the debtor and the debtor’s employer then the employer will start making payments from the first payday after seven (7) days of being served.

Once you have all of the information, you can get your debt recovery solicitor to apply for this or another enforcement warrant, including:

1. Enforcement warrant for the redirection of debts.
2. Enforcement warrant for seizure and sale of property.

FAQ – Warrant for Redirection of Earnings

See below for some frequently asked questions regarding an enforcement warrant for redirection of earnings.

What is an enforcement warrant for redirection of earnings?

An enforcement warrant for redirection of earnings is a legal document issued by a court in Queensland, Australia, under the Uniform Civil Procedure Rules 1999. This warrant allows a creditor to collect a debt by redirecting a portion of the debtor’s earnings from their employer directly to the creditor. It’s used to enforce a judgment or a registered QCAT decision. The process involves submitting specific forms, proving the debtor’s financial ability to pay, and considering the impact on the debtor’s living expenses and liabilities. The court exercises discretion in issuing these warrants, ensuring a balance between the creditor’s right to enforce the debt and the debtor’s financial circumstances.

How does one apply for an enforcement warrant for redirection of earnings?

To apply for an enforcement warrant for redirection of earnings, the creditor must submit an application to the court, including several key documents. These include an enforceable money order (like a court judgment or registered QCAT decision), Form 9 (outlining the orders sought), a draft warrant (Form 78), and a statement in support of the application. The creditor must also define ‘earnings’ and provide notices to the employer (Forms 79 and 80). The application process is detailed and requires accurate completion of all forms, alongside evidence of the debtor’s financial position and the creditor’s claim.

What are considered ‘earnings’ under this warrant?

Under an enforcement warrant for redirection of earnings, ‘earnings’ are broadly defined to include wages, salary, bonuses, pensions, benefits, annuities, leave payments, and retirement benefits. This definition is comprehensive, encompassing various forms of compensation that a debtor may receive from employment or other sources. The wide scope of this definition ensures that creditors have a better chance of recovering debts by attaching to a range of financial resources available to the debtor.

What role does the court play in issuing an enforcement warrant for redirection of earnings?

The court plays a crucial role in issuing an enforcement warrant for redirection of earnings. It exercises discretion by considering the debtor’s employment status, their ability to satisfy the debt, and the potential impact of the warrant on their necessary living expenses and other liabilities. The court aims to balance the creditor’s right to enforce the debt with the debtor’s financial situation, ensuring that the enforcement does not impose unreasonable hardship on the debtor.

Is professional legal assistance necessary for obtaining an enforcement warrant for redirection of earnings?

While not legally mandatory, professional legal assistance is highly recommended when obtaining an enforcement warrant for redirection of earnings. The process involves complex legal procedures, detailed form submissions, and a nuanced understanding of the Uniform Civil Procedure Rules. Legal professionals can provide expertise and guidance, ensuring that the application is correctly completed and increasing the likelihood of a successful outcome.

Can a creditor enforce a debt against a debtor’s property instead of their earnings?

Yes, a creditor can choose to enforce a debt against a debtor’s property instead of their earnings. This alternative enforcement method involves a different legal process, such as obtaining a warrant for the seizure and sale of property. The choice between redirecting earnings and targeting property depends on various factors, including the debtor’s financial situation and the nature of the assets they possess. Creditors often assess which method is more likely to successfully recover the debt.

What happens if a debtor’s financial circumstances change after the issuance of the warrant?

If a debtor’s financial circumstances change after the issuance of an enforcement warrant for redirection of earnings, the warrant may need to be adjusted or set aside. The creditor or debtor can approach the court to review the warrant in light of the new circumstances. This could involve modifying the amount being redirected from the debtor’s earnings or, in some cases, ceasing the redirection altogether. The court will reassess the situation to ensure that the enforcement remains fair and reasonable.

How long does it take to obtain an enforcement warrant for redirection of earnings?

The time it takes to obtain an enforcement warrant for redirection of earnings can vary depending on several factors, including the complexity of the case, the court’s workload, and the completeness and accuracy of the application submitted by the creditor. Generally, the process involves several steps, such as submitting the application, the court reviewing the documents, and serving the warrant on the debtor and employer. This can take several weeks to months, highlighting the importance of accurate and timely submission of all required documents.

What are the consequences for an employer who fails to comply with an enforcement warrant for redirection of earnings?

An employer who fails to comply with an enforcement warrant for redirection of earnings faces legal consequences. They are legally obligated to redirect the specified portion of the debtor’s earnings to the creditor. Non-compliance can result in legal action against the employer, potentially leading to fines or other penalties. Employers must therefore understand their responsibilities under the warrant and ensure they adhere to the terms set out in the court’s order.

Can a debtor dispute an enforcement warrant for redirection of earnings?

A debtor can dispute an enforcement warrant for redirection of earnings if they believe it has been wrongly issued or imposes unreasonable hardship. The debtor can file an application with the court to set aside or modify the warrant. The court will then review the debtor’s financial situation, the creditor’s claim, and any other relevant factors to determine whether the warrant should be adjusted or set aside. This process ensures that debtors have the opportunity to contest enforcement actions that they believe are unjust or overly burdensome.

Does this warrant apply to independent contractors?

This enforcement warrant probably does not apply to independent contractors.  It really depends if the way that the contractor is paid by the employer and whether that is caught by the definitions of “employer” and “earnings”.  Probably an enforcement warrant for redirection of debts might be a better option.

How long does the enforcement warrant for redirection of earnings last?

Rule 855(2) says that an enforcement warrant for redirection of earnings continues in force until:

(a) the total amount specified in the warrant is paid; or

(b) the warrant is set aside or expires according to its conditions.

What is an employer?

An employer is defined in rule 793 of the UCPR and says:

“employer” of an enforcement debtor means a person (including the State) who, as principal, rather than as a servant or agent, pays, or is likely to pay, earnings to the enforcement debtor.

Can I recover the debt from the employer?

There is a long line of authorities which say that there is no transfer of security from the debtor to the employer.

In Chatterton v Watney (1881) 17 Ch D 259 Cotton LJ said:

The effect of a garnishee order is to bind the debt attached and to prevent the creditor from receiving it; and when it is made absolute it gives the judgment creditor a right to recover payment from the garnishee…[i]t has not the effect of transferring the security, nor does it give the person who obtained the garnishee order any right to the security or any claim against the land comprised in it.

Cotton LJ repeated this in Re Combined Weighing and Advertising Machine Company (1889) 43 Ch D 99.

What happens if the debtor leaves his employment?

If the enforcement debtor leaves that place of employment then the warrant expires.

The employer is required to give notice to the registrar of the Court and to the creditor.  The creditor will then need to request another warrant by starting the process over.

Rule 866(2) says when the debtor ceases the employment:

The person must, immediately after ceasing to be the enforcement debtor’s employer, give notice in the approved form mentioned in rule 859 (2) (b) to the registrar and the enforcement creditor.

The employer must serve a Form 81 – notice of cessation of employment – if the debtor has ceased working for the employer at a certain date.

Moving Forward

We strongly suggest that you engage a suitable qualified legal practitioner who specialises in the enforcement of money orders.

If you have a QCAT decision which needs to be registered in the Magistrates Court and enforced, or a judgment, direction, decision or determination of the Court to be enforced then contact our dedicated enforcement lawyers today.

There are a number of difficult steps that need to happen before an employer must comply with an enforcement warrant for redirection of earnings. We strongly recommend engaging a legal professional