Western Australian Current Acts Western Australian Current Acts[s. 48]
1 . Financial institution accounts in name of
judgment debtor
(1) This clause does
not apply to an account that is prescribed by regulations as being exempt from
the operation of this clause.
(2) For the purpose of
determining whether money, in an account with a financial institution,
standing to the credit of the judgment debtor alone or jointly with another or
others is an available debt for the purposes of Part 4 Division 5, the
following conditions are to be disregarded —
(a) a
condition that a demand must be made before any money or share is withdrawn;
(b) a
condition relating to the manner in which or the place at which any such
demand is to be made;
(c) a
condition that a passbook, receipt or other document must be produced before
any money or share is withdrawn;
(d) a
condition that notice is required before any money or share is withdrawn;
(e) a
condition that any money or share must not be withdrawn for any specified
period;
(f) a
condition prescribing a minimum amount in respect of any withdrawal;
(g) a
condition that a minimum balance must be maintained in the account;
(h) a
condition relating to the account prescribed by the regulations for the
purposes of this subclause.
(3) Any charge on any
money, in an account with a financial institution, standing to the credit of a
judgment debtor alone or jointly with another or others, being a charge
created by the rules of the institution or the law under which the institution
is registered or regulated, is to be disregarded for the purposes of a debt
appropriation order.
(4) Subclause (3) does
not affect the rights of a financial institution to set off or appropriate the
whole or a part of an amount standing to the credit of a judgment debtor alone
or jointly with another or others.
(5) So much of the
money standing to the credit of the judgment debtor alone or jointly with
another or others in an account with a financial institution of which the
judgment debtor is a member as is the minimum amount that must be maintained
in the account in order that the judgment debtor retains the membership is not
an available debt.
2 . Debts owed to judgment debtor and others
jointly
(1) For the purpose of
determining a judgment debtor’s interest in an available debt that is or
will be or may be owed to the judgment debtor jointly with another or others
(the joint owners ), each joint owner is to be presumed to have an equal
interest in the debt.
(2) The presumption
that joint owners have an equal interest in an available debt may be rebutted
by the judgment creditor, the judgment debtor or another joint owner.
(3) If, on an
application by a person referred to in subclause (2), a court is satisfied
that the interests of the joint owners are not equal, the court may by order
decide the extent of the judgment debtor’s interest in the available
debt.
3 . Available debts, court may exempt certain
portions
(1) If an available
debt is money payable for the use of property owned by the judgment debtor
alone or jointly with another or others, the court by order may exempt from
payment under a debt appropriation order that applies to the debt so much of
the debt as is required by the judgment debtor to keep or maintain the
property.
(2) If an available
debt is money payable under an agreement with the judgment debtor, the court
by order may exempt from payment under a debt appropriation order that applies
to the debt so much of the debt as is required by the judgment debtor to
perform the agreement.
(3) The court may
exempt from payment under a debt appropriation order that applies to an
available debt so much of the debt as is required by the judgment debtor to
meet his or her necessary living expenses, including those of his or her
dependents.
4 . Debts payable on conditions
(1) If —
(a) the
payment of an available debt to a judgment debtor depends on the judgment
debtor fulfilling a condition; and
(b) a
debt appropriation order applies to the available debt; and
(c) the
condition will unreasonably prevent or delay payment of the debt by the third
person to the judgment creditor under the order,
the court may by order
—
(d)
require the third person to disregard the condition; or
(e)
specify some other means of fulfilling the condition.
(2) An order must not
be made under subclause (1) that has the effect of requiring the third person
to make a payment to the judgment creditor before the earliest time that the
third person could have been required to make the payment to the judgment
debtor under the terms of the third person’s obligation to the judgment
debtor.
This is a compilation of the Civil Judgments Enforcement Act 2004 and
includes amendments made by other written laws 3 . For provisions that have
come into operation, and for information about any reprints, see the
compilation table.
|
Short title |
Number and year |
Assent |
Commencement |
|---|---|---|---|
|
28 of 2004 |
14 Oct 2004 |
s. 1 and 2: 14 Oct 2004; | |
|
17 of 2005 |
5 Oct 2005 |
10 Jul 2010 (see s. 2(3) and Gazette 9 Jul 2010 p. 3239) | |
|
Planning and Development (Consequential and Transitional Provisions) Act 2005
s. 15 |
38 of 2005 |
12 Dec 2005 |
9 Apr 2006 (see s. 2 and Gazette 21 Mar 2006 p. 1078) |
|
Acts Amendment (Justice) Act 2008 Pt. 3 |
5 of 2008 |
31 Mar 2008 |
30 Sep 2008 (see s. 2(d) and Gazette 11 Jul 2008 p. 3253) |
|
Legal Profession Act 2008 s. 645 |
21 of 2008 |
27 May 2008 |
1 Mar 2009 (see s. 2(b) and Gazette 27 Feb 2009 p. 511) |
|
Reprint 1: The Civil Judgments Enforcement Act 2004 as at 20 Feb 2009
(includes amendments listed above except those in the
Housing Societies Repeal Act 2005 and the Legal Profession Act 2008 ) | |||
|
Co-operatives Act 2009 s. 507 and 512 |
24 of 2009 |
22 Oct 2009 |
s. 507: 1 Sep 2010 (see s. 2(b) and Gazette 13 Aug 2010 p. 3975); |
|
Police Amendment Act 2009 s. 13 |
42 of 2009 |
3 Dec 2009 |
13 Mar 2010 (see s. 2(b) and Gazette 12 Mar 2010 p. 941) |
|
Road Traffic Legislation Amendment Act 2012 Pt. 4 Div. 8 |
8 of 2012 |
21 May 2012 |
27 Apr 2015 (see s. 2(d) and Gazette 17 Apr 2015 p. 1371) |
|
Reprint 2: The Civil Judgments Enforcement Act 2004 as at 24 May 2013
(includes amendments listed above except those in the Road Traffic Legislation
Amendment Act 2012 ) | |||
|
Courts and Tribunals (Electronic Processes Facilitation) Act 2013 Pt. 3 Div.
3 |
20 of 2013 |
4 Nov 2013 |
25 Nov 2013 (see s. 2(b) and Gazette 22 Nov 2013 p. 5391) |
|
Local Government Legislation Amendment Act 2016 Pt. 3 Div. 7 |
26 of 2016 |
21 Sep 2016 |
21 Jan 2017 (see s. 2(b) and Gazette 20 Jan 2017 p. 648) |
|
Courts Legislation Amendment Act 2018 Pt. 2 |
29 of 2018 |
2 Nov 2018 |
3 Nov 2018 (see s. 2(b)) |
|
Legal Profession Uniform Law Application Act 2022 Pt. 17 Div. 3 |
9 of 2022 |
14 Apr 2022 |
1 Jul 2022 (see s. 2(c) and SL 2022/113 cl. 2) |
1 The correct short title of this Commonwealth Act
is the Child Support (Assessment) Act 1989 .
2 The Workmen’s Wages Act 1898 was repealed
by the Statutes (Repeals and Minor Amendments) Act 2009.
3 The Courts Legislation Amendment and Repeal Act
2004 Pt. 22 (as amended by the Acts Amendment (Justice) Act 2008 s. 24)
contains transitional provisions about enforcing judgments given before that
Part commenced. Part 22 and the Civil Judgments Enforcement Act 2004
commenced on 1 May 2005. Part 22 reads as follows:
Part 22 — Transitional provisions
Division 1 — Provisions about enforcing judgments
143. Interpretation
(1) In this Part
—
commencement means the commencement of this Part;
court fee , for an application, does not include
any fee payable in connection with serving the application to the Sheriff or
any other person;
enforcement process means any writ, warrant,
order, or other process, issued by a court for or in connection with enforcing
a judgment or order of the court.
(2) This Part does not
limit the operation of the Interpretation Act 1984 Part V.
144. Judgments not satisfied before commencement
If immediately before
commencement a judgment of the Supreme Court, District Court or Local Court is
unsatisfied, then on commencement —
(a) if
any proceedings for or in connection with enforcing the judgment are pending
in a court, section 145 applies;
(aa) if
any enforcement process is in force in relation to the judgment, section 146
applies;
(b)
otherwise, the judgment may be enforced under and subject to the
Civil Judgments Enforcement Act 2004 .
[Section 144 amended:
No. 5 of 2008 s. 24.]
145. Pending proceedings to enforce a judgment
(1) If immediately
before commencement proceedings for or in connection with enforcing a judgment
are pending in a court, then on commencement either —
(a) the
proceedings may be continued under the law in force immediately before
commencement, despite the enactment of the Civil Judgments Enforcement Act
2004 ; or
(b) the
person entitled to the benefit of the judgment may discontinue the proceedings
and commence proceedings under the Civil Judgments Enforcement Act 2004 to
enforce the judgment.
(2) If proceedings are
continued under subsection (1)(a) —
(a) no
enforcement process may be issued under the law in force immediately before
commencement for or in connection with enforcing the judgment; but
(b)
subject to the Civil Judgments Enforcement Act 2004 , the court may make any
order under that Act that substantially corresponds with any order that the
court could have made in the proceedings under the law in force immediately
before commencement.
(3) If proceedings
under the Supreme Court Act 1935 section 126(2) or the Local Courts Act 1904
section 130 are continued under subsection (1)(a), they are to be taken to be
a means inquiry held under the Civil Judgments Enforcement Act 2004 for the
purposes of subsection (2)(b).
(4) Subsection (2)(a)
does not prevent the issue of any warrant or writ in connection with
conducting any proceedings that are continued under subsection (1)(a).
(5) No court fee shall
be payable for commencing proceedings as permitted by subsection (1)(b) by a
person who has discontinued proceedings as permitted by that subsection.
146. Pending process to enforce a judgment
(1) If immediately
before commencement any enforcement process is in force, then on commencement
the process continues in force under the law in force immediately before
commencement until —
(a) the
process ceases to be in force under that law;
(b) the
process ceases to be in force under subsection (6)(a); or
(c) the
expiry of 12 months after commencement,
whichever happens
first, and may be served, dealt with, or executed, under the law in force
immediately before commencement which continues to apply to and in respect of
the process.
(2) If —
(a) on
commencement a copy of a writ of fieri facias is in the Register maintained
under the Transfer of Land Act 1893 , having been served on the Registrar and
entered in that Register under section 133 of that Act; or
(b)
after commencement a copy of a writ of fieri facias is entered in that
Register under section 133 of that Act, having been served on the Registrar
under that section,
then —
(c)
despite subsection (1) the Transfer of Land Act 1893 section 133 (as inserted
by this Act) applies to and in respect of the writ as if the writ were a
property (seizure and sale) order that had been —
(i)
issued under the Civil Judgments Enforcement Act 2004 ;
and
(ii)
registered under the Transfer of Land Act 1893 section
133 (as inserted by this Act) at the time when the copy of the writ was so
served;
(d) if
the sale period referred to in the Transfer of Land Act 1893 section 133 (as
inserted by this Act) in respect of the writ expires at a time after the writ
ceases to be in force under the law in force immediately before commencement,
the writ is to be taken to remain in force until the sale period expires,
despite that law; and
(e)
subject to paragraphs (c) and (d), subsection (1) applies to and in respect of
the writ.
(3) In subsection (2),
a reference to a writ of fieri facias includes a reference to a warrant of
execution issued out of a Local Court under the Local Courts Act 1904 .
(4) If immediately
before commencement any enforcement process is in force but unexecuted, the
person for whose benefit the process was issued may apply for an order under
the Civil Judgments Enforcement Act 2004 to enforce the judgment or order.
(5) No court fee shall
be payable on making an application under subsection (4) for an order under
the Civil Judgments Enforcement Act 2004 .
(6) If on an
application made under subsection (4) an order is made under the
Civil Judgments Enforcement Act 2004 —
(a) the
unexecuted process referred to in subsection (4) ceases to be in force; and
(b) the
order made under the Civil Judgments Enforcement Act 2004 has the same
priority as the unexecuted process referred to in subsection (4) has
immediately before it ceases to be in force under paragraph (a).
147. Existing bailiffs and their assistants,
termination of appointment etc.
(1) On commencement
the following offices are abolished and the persons holding them cease to do
so —
(a) a
bailiff appointed under the District Court of Western Australia Act 1969
section 28(1);
(b) a
person appointed under the District Court of Western Australia Act 1969
section 28(2) by a bailiff to assist the bailiff;
(c) a
bailiff appointed under the Local Courts Act 1904 section 16 ;
(d) a
person appointed under the Local Courts Act 1904 section 16 by a bailiff to
assist the bailiff.
(2) If immediately
before commencement a person who is not a police officer is a bailiff
appointed under the Local Courts Act 1904 section 16 , then on commencement
the person is entitled to be appointed as a bailiff under the
Civil Judgments Enforcement Act 2004 section 107 for a term of 5 years as from
commencement.
(3) If immediately
before commencement a person who is a police officer is —
(a) a
bailiff appointed under the District Court of Western Australia Act 1969
section 28(1); or
(b) a
bailiff appointed under the Local Courts Act 1904 section 16 ,
then on commencement
the person is taken to have been appointed as a bailiff under the
Civil Judgments Enforcement Act 2004 section 107.
Division 2 — General
148. Transitional regulations
(1) If this Act does
not provide sufficiently for a matter or issue of a transitional nature that
arises as a result of the repeal or amendment of any Act by this Act and the
coming into operation of any of the Acts referred to in section 3, the
Governor may make regulations prescribing all matters that are required,
necessary or convenient to be prescribed for providing for the matter or
issue.
(2) Regulations made
under subsection (1) may be expressed to have effect before the day on which
they are published in the Gazette .
(3) To the extent that
a provision of regulations made under subsection (1) has effect before the day
on which it is published in the Gazette , it does not —
(a)
affect in a manner prejudicial to any person (other than the State or an
agency of the State) the rights of that person existing before the day of
publication; or
(b)
impose liabilities on any person (other than the State or an agency of the
State) in respect of anything done or omitted to be done before the day of
publication.
Defined terms
[This is a list of terms defined and the provisions where they
are defined. The list is not part of the law.]
Defined term Provision(s)
account
45
appropriated debt 45
assistant
bailiff 3
available asset
85
available debt 3, 46(1)
bailiff
3
claimant 83(1)
corporation
3
court 3
debt
appropriation order 3
declared areas
106
default inquiry 3
deputy sheriff
3
dwelling 3
earnings
3, 4
earnings appropriation order
3
enforcement costs 3
enforcement
officer 3
enforcement order
17
financial institution 45
imprisonment
order 92(1)
instalment order
3
interest 63(1)
interpleader proceedings
3
joint owners Sch. 1
cl. 2(1)
judgment 3
judgment creditor
3
judgment debt 3
judgment
debtor 3
judgment sum
3
legal practitioner 30(1)
means inquiry
3
mobile home 3
monetary
judgment 3
net earnings
34
obligated person 99(1)
officer
3
original order 103(1)
partnership 3
personal property
3
place 3
police office-holder
106
proceeds 72(1)
property (seizure and delivery) order 3
property
(seizure and sale) order 3
protected officer
111(1)
public authority
63(1)
public servant 106
real property
3
record 3
saleable
interest 3, 74(1), 80(1)
sheriff
3
superintendent 92(1)
suspension
order 3
third party interest
71(1)
third person 34, 45
time for payment
order 3
vehicle 3