The next court process in the enforcement of a judgment debt is an investigation hearing [Enforcement of Judgments Act 1991 (SA) s 5(2)]. If the debtor is present at court when judgment is given, the judgment creditor can ask the magistrate to conduct an investigation hearing into the respondent's financial position. Otherwise, to instigate an investigation hearing the judgment creditor will need to fill out and file a Application to Enforce Judgment - Form 141 for which there is a filing fee [Uniform Civil Rules 2020 r 203.4(1)].

If the judgment debt is for more than $12,000 or has arisen from the judgment debtor carrying on a business, then a warrant of sale (see below) can be asked for on the original application for the investigation hearing [ rr 203.2 and 203.10].

If the judgment debt is from a minor civil action ($12,000 or less) against an individual and has not arisen from the judgment debtor carrying on a business, further enforcement processes (such as a warrant of sale) can only be issued in the following circumstances [ r 203.2(1)]:

Once a payment order is in place, a warrant of sale may not generally be issued unless the judgment debtor has failed to pay a lump sum or is at least 2 instalments in arrears [r 203.2(3)].

In relation to a warrant of sale of land, a warrant of sale of land may not generally be issued against an individual in respect of a judgment debt of $12,000 or less unless:

If a warrant of sale of land is sought, the applicant must file a copy of the Certificate of Title in relation to the land [r 203.10 (2)].

A summons requiring the judgment debtor to attend the Investigation Hearing [Form 143] must be served personally on the judgment debtor as soon as practicable before the date set for the hearing [r 203.4(3)]. Before the hearing, the debtor will fill out a form detailing their financial situation [Form 145 - Questionnaire], if they have not already done so pursuant to an investigation notice or otherwise within the preceding 3 months [r 203.4(4)]. This will include how much they spend on rent, bills, food and other expenditure. During the hearing a judgment creditor will have a chance to question the debtor on this information.

The registrar in charge of the hearing will then usually make an order for the debt to be paid in instalments. The court will only order the debtor to pay instalment amounts they can afford. If the court decides the debtor has no means to pay the debt, the creditor may ask for an adjournment (usually for a year) so that the court can reassess the debtor’s circumstances at a later date.

However, after an investigation summons has been issued a judgment debtor may consent to an order for payment being made in order to see the debt paid without further court involvement. The applicant also needs to consent to the order for payment proposed by the judgment debtor. If the parties agree on payment terms a Form 142 Consent Order for Payment may be filed in the court, setting out the agreed payment.

Is the debtor a company?

If the judgment debtor is a company, it can be summonsed to appear at Court on an investigation hearing. Usually a director of the company will attend and be required to produce evidence of the company's ability to pay the amount owing. If the company is unable to pay the debt, it may be appropriate to issue a statutory demand under the Corporations Act 2001 (Cth). Legal advice should be sought about this process.