So you’ve been through the litigation process and you’ve obtained a Victorian court order which says that Jane Smith must pay you a certain amount of money by a certain date. But that date comes and goes – and your debt remains unpaid. Your next step ought to be considering enforcing a debt against assets owned by the debtor.
Enforcing a Judgment Debt
As a judgment creditor (in this case, someone in whose favour a money judgment/order has been made), you do not have a right to any specific assets owned by the debtor. In order to ensure that your debt is satisfied, you should first obtain all relevant information as to the financial position of the debtor and then determine the most appropriate means of enforcing your judgment debt.
In this article, we will discuss the avenues that are available to assist you to ascertain the assets that are owned/held by the debtor.
What Assets are Owned by the Debtor?
Fortunately, there are searchable public registers that contain information as to assets held/owned by individuals and companies.
The most well-known register is that relating to real estate ownership. Each State and Territory’s register of property ownership is publicly searchable and viewable for a small fee (otherwise known as a land title search). In recent times online search providers have begun offering national property ownership reports which show results from each of the States and Territories.
It is important to be aware that while land title searches will show who owns the property, they will not necessarily tell you whether the property is held on trust. Also, while ownership is relevant, on account of the fact that many properties are in fact subject to a mortgage, what you really want to know is how much equity the owner has in the property. In this regard, land title searches are not much help because they will only show whether the property has a mortgage over it – not the current extent/value of that encumbrance.
You should take note of whether a caveat has been lodged on title by a purchaser under a contract of sale. If this is the case and there are sufficient grounds to establish that the debtor is attempting to dissipate its assets in order to thwart the court orders, by, for example selling to a related party for a below-market value, a further court order may be sought to restrain the debtor from transferring the property (otherwise known as a “freezing order”).
Personal Property (otherwise known as “Chattels”)
Since the introduction of the Personal Property Securities Register (PPSR) in 2012, security interests held over chattels (such as cars, boats, caravans, trailers, artwork, crops, inventory, livestock, plant and machinery) in Australia are publicly viewable for a small search fee.
To be clear, the PPSR does not show or prove ownership of chattels – it is there to show the existence (or otherwise) of security interests over personal property, so as to inform prospective purchasers and financiers.
However, if a person/company has granted a security interest to another party then it is an indication of ownership of that chattel and may be of assistance to you.
If you would like legal assistance to determine the assets owned by a judgment debtor and in enforcing your money judgment, please contact our specialised disputes lawyers.