A warrant of sale can be issued in relation to either the judgment debtor's real property (land) or personal property (such as non-essential household items) [Enforcement of Judgments Act 1991 (SA) s 7].

Unless the court orders otherwise, a warrant of sale of land cannot be issued against an individual in respect of a judgment debt of $12,000 or less unless:

[See Uniform Civil Rules 2020 r 203.2(4)]

To apply for a warrant of sale, a judgment creditor must fill in and file an Application to Enforce Judgment (Form 141) [Uniform Civil Rules 2020 r 203.10(1)]. A registrar must not issue a warrant where the judgment debtor is subject to an order for payment, unless satisfied by affidavit evidence (Form 12) that the judgment debtor has failed to comply with the order, or if at least 2 instalment payments are in arrears [r 203.2(3)].

A warrant for the sale of personal property authorises a sherriff’s officer to enter the judgment debtor’s address and seize property of sufficient value to cover the debt. Certain items such as cars under a certain value, ordinary clothing and necessary household goods cannot be seized. Items under finance or jointly owned will not be seized. If the debtor is bankrupt, their property cannot be taken. Only about a third of warrants for the sale of personal property are successful in recovering any money at all. Therefore, a judgment creditor should consider whether it is worth applying for a warrant of sale. It is best to find out whether the debtor owns more than one car or any valuable assets. If not, it may not be worth paying the fee to issue a warrant for sale.

Very few warrants for the sale of real property will proceed to sale as the judgment debtor will usually pay the outstanding amount before their property goes to auction.

A judgment creditor applying for a warrant for the sale of real property must first do a search at Land Services SA to discover whether the debtor owns any land (there is a small fee for this service). If a warrant of sale is sought, the judgment creditor must file a copy of the Certificate of Title for the land with the Application to Enforce Judgment [r 203.10(2)]. The judgment creditor must also give a written undertaking to pay for any costs involved in the auction of the property. These costs are recoverable from the debtor upon sale of the land.

A charging order allows the court to charge real property (land) owned by a judgment debtor [Enforcement of Judgments Act 1991 (SA) s 8]. This means that the debt will be registered on the title of real estate of the person or on the assets of a company. If the property is sold then it will be subject to the charge and the judgment creditor has priority over the owner for the proceeds of the sale. However, if there is insufficient equity in the property after any prior mortgage is paid out, the judgment creditor may still not get paid.

To apply for a charging order, a search must be conducted at Land Services SA to identify any property owned by the judgment debtor. The judgment creditor will then need to file an Interlocutory Application (Form 77) [Uniform Civil Rules 2020 r 203.14]. The judgment creditor will need to specify that it is an application for a “charging order over (address of property) for the judgment debt of $...”.

The application must be accompanied by an affidavit (Form 12) [r 203.14(2)] which:

The Interlocutory Application and supporting affidavit must be accompanied by a draft Charging Order (Form 150) [r 203.14(1)].

The Interlocutory Application, affidavit and draft order must then be served on the judgment debtor as soon as practicable before the date set for hearing [r 203.14(3)]. If a person (other than the judgment debtor) has or may have an interest in the property, the court may order that the person be joined as an interested party to the proceeding or that notice of the application for a charging order be given to that person [r 203.15(3)].

If the judgment debtor fails to appear at the hearing within 15 minutes of the scheduled hearing time, the Court may proceed with the hearing and make an order in the absence of the judgment debtor.

Once a judgment creditor obtains the charging order, they will need to arrange for it to be registered at Land Services SA. The Land Services SA website has relevant forms and guidance notes available.

A garnishee order is an order that any money owed to the judgment debtor is paid directly to the judgment creditor [Enforcement of Judgments Act 1991 (SA) s 6].

A judgment creditor may make an interlocutory application (Form 77) and supporting affidavit (Form 12) regarding the outstanding debt and the third parties owing money to, or holding money on behalf of, the judgment debtor [Uniform Civil Rules 2020 (SA) r 203.11]. The interlocutory application and affidavit must be accompanied by a draft interim garnishee order (Form 148).

The court may make an order garnishing the salary or wages of a debtor without the debtor's consent if the court considers it appropriate [Enforcement of Judgments Act 1991 (SA) s 6(2)]. However, the debtor's net weekly salary or wages after tax must not be garnished such that the debtor is left with less than 90% of the weekly national minimum wage under the Fair Work Act 2009 (Cth) [s 6(2a)].

These orders are not common because if money was available from a third party the debt would usually have been paid at an earlier stage.

If a garnishee order is made in the absence of the judgment debtor or the third party, the judgment creditor must serve them with notice of the adjourned hearing date and interlocutory application as soon as practicable before the adjourned hearing date [r 203.11(4)]. The judgment creditor must also serve the garnishee order on the third party without delay.

If the debt is for more than $10,000, a judgment creditor may start bankruptcy proceedings against the debtor [Bankruptcy Act 1966 (Cth) s 44]. If a person is declared bankrupt then all of their property (with exceptions similar to those for a warrant of sale) comes under the control of a trustee. A creditor may then lodge proof of the debt (the judgment) with the trustee to receive a share of the profits from the sale of the debtor’s property.

Before commencing bankruptcy proceedings, a judgment creditor should consider whether the judgment debtor owns enough property to make declaring them bankrupt worthwhile. If they own real estate (check at Land Services SA) or if they have a position that they will lose if declared bankrupt, then the threat of bankruptcy may force payment of the debt. The cost of bankrupting someone should also be considered.

The first step in bankruptcy proceedings is usually to serve the person with a bankruptcy notice [s 41]. A bankruptcy notice is a form requiring the debtor to pay the debt within 21 days. This form needs to be filed with Australian Financial Security Authority (AFSA). The costs are listed on AFSA's Fees and charges page.

Once 21 days have elapsed from the service of the bankruptcy notice on the debtor, a creditor’s petition must be lodged in the Federal Circuit and Family Court or in the Federal Court. The costs vary depending on whether the application is being lodged by a natural person, a publicly listed company or a corporation. See Federal Court and Federal Circuit and Family Court Regulations 2022 (Cth) Schedule 1 for further details. Some people on low incomes can apply for the fees to be waived.

Sending someone bankrupt is a complex process. A judgment creditor should seek independent legal advice before commencing bankruptcy proceedings. Further information on sending someone bankrupt is available from the AFSA website. A booklet on creditor’s petitions is available at the Federal Court Registry, Level 5, Roma Mitchell Commonwealth Law Courts Building, 3 Angas Street, Adelaide and information is also available via the Federal Court website.

Winding up a company is the equivalent of declaring a natural person bankrupt. It starts with an application to the Supreme Court and higher costs apply. Seek legal advice before commencing proceedings to wind up a company.