The Law Handbook 2024

358 Section 5: Managing your money hearing, such as bills, receipts, bank statements and proof of income. The court may require you to answer questions under oath, and can allow the creditor or the creditor’s lawyer to question you about your financial situation and means and ability to pay the debt. Neither the creditor nor the creditor’s lawyer is allowed to directly cross-examine you, and the court may forbid any questions from the creditor or the creditor’s lawyer that, in the circumstances, are oppressive or unfair. You are entitled to be represented at the hearing. Summons to attend court If you are not at the court hearing, and the court is not satisfied that the application should be granted, the court will issue a summons for you to attend the court for questioning. This summons may also require you to produce documents detailing your financial situation. If you do not attend the court as required by the summons, you cannot be fined, but the court can issue a warrant for the police to arrest you and take you to court at a later date (r 61.07, form 61H, Magistrates’ Court General Rules). The police officer who makes the arrest has the power to release you if you undertake or promise to appear at court on that date (s 14(2)–(4) JDR Act). Enforcement of an instalment order If you fail to make a payment required by the instalment order, the creditor can apply to the registrar to issue a summons requiring you to attend court. The application for the summons must be accompanied by an affidavit explaining the circumstances of the default (r 61.06 Magistrates’ Court General Rules). If you fail to attend court as required by the summons, you cannot be fined, but a warrant for your arrest can be issued (s 17 JDR Act). At the court hearing The court (not a court officer in this case) is required to question you about your financial situation and consider the circumstances of your failure to make the payment. The court may confirm, vary or cancel the instalment order. It is absolutely essential that you are represented at this hearing. This procedure is sometimes misused by creditors or their representatives to pressure debtors to make further instalment agreements and incur extra legal costs. If you are served with this summons, seek advice from a financial counsellor. Imprisonment If the court is satisfied that you are able to pay the instalments as required under the instalment order and that you have ‘persistently and wilfully and without an honest and reasonable excuse’ failed to make payment, it can sentence you to up to 40 days imprisonment (s 19 JDR Act). Appeal against imprisonment An order to imprison you cannot be made unless you are present at the hearing. If you are sentenced to imprisonment by the Magistrates’ Court, you have a right to appeal to the County Court. If you make the payments owing under the instalment order you will be let out of prison. Warrant to seize property If the creditor thinks that you may have personal property that can be seized and sold to pay the judg­ ment debt, they will issue a warrant to seize property. A warrant to seize property is an order to the sheriff to seize and sell goods belonging to the debtor (the person named in the warrant) unless the debtor pays the amount stated in the warrant. Warrants to seize property are usually issued on the request of the creditor’s solicitors by the registrar of the Magistrates’ Court where the order was made. The creditor’s solicitors then send the warrant to the Sheriff’s Office to be administered. The sheriff’s costs, plus the creditor’s solicitors’ costs, which vary depending on the amount involved, are added to the judgment debt. It is arguable that if the execution of the warrant does not result in any goods being sold, the judgment creditor must pay the sheriff’s costs (see Montague v Davies, Benachi &Co [1911] 2 KB 595). A sheriff’s officer will arrive at your house, show you the warrant and explain that if you don’t pay the amount on the warrant, goods will be seized and auctioned to pay off the debt. Generally, the sheriff ‘s officer will allow you time to get the money, negotiate with the creditor or enter into an instalment order (see ‘Instalment orders’, above). You are entitled to refuse to let the sheriff’s officer enter your property. A sheriff’s officer may enter a house to carry out a warrant to seize property only if they believe on reasonable grounds that in the house