05 March 2021
Litigation - Enforcement - Instalment orders
A company’s judgment debt is subject to an instalment order. The directors of the company have paid themselves rather than paying the company's judgment debt.
What should a judgment creditor present to satisfy a registrar to vacate an instalment order?
Thank you for the question.
Evidence is required that the company’s financial position has improved since the making of the instalment order.
The following is an extract from the By Lawyers Enforcement (NSW) commentary:
Rule 37.6 permits variation or rescission of an instalment order on the application of a judgment creditor. This is to be by notice of motion supported by an affidavit which shows any improvement in the judgment debtor's financial position.
Evidence that directors have paid themselves may not necessarily support such an order. For example, the payment may be company wages, which is a legitimate liability when calculating the company’s financial position.
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