Subdiv 2Action requiring formal determination

Subdivision 2—Action requiring formal determination 61—Requirement for payment of instalments etc (1) The Chief Recovery Officer may determine that a debtor is to pay instalments towards the satisfaction of a debt owed by the debtor. (2) The amount and regularity of the instalments must be specified in the relevant enforcement notice. (3) A debtor who is a natural person can only be required to pay instalments towards the satisfaction of a debt if— (a) the Chief Recovery Officer has conducted an investigation into the debtor's means of satisfying the debt; or (b) the Chief Recovery Officer is satisfied that there are, in the circumstances of the case, proper reasons for dispensing with such an investigation. (4) In determining whether a debtor who is a natural person should be required to pay instalments towards the satisfaction of the debt, the Chief Recovery Officer should have due regard to evidence placed before the Officer as to— (a) the debtor's means of satisfying the debt; and (b) the necessary living expenses of the debtor and the debtor's dependants; and (c) other liabilities of the debtor, and where satisfactory evidence is placed before the Chief Recovery Officer on those subjects, the Officer should determine the amount and regularity of the instalments so as to ensure that unreasonable requirements are not imposed on the debtor. (5) The Chief Recovery Officer— (a) may, on application by a debtor, rescind, suspend or vary a determination under subsection (1) if the Chief Recovery Officer is satisfied that there has been a relevant change in the debtor's circumstances; and (b) must give the debtor written notice of the Chief Recovery Officer's decision on the application. (6) Written notice of a decision under subsection (5) is to be taken to be an enforcement notice for the purposes of this Part. (7) If a debtor fails to comply with a determination under subsection (1), the Court may, on application by the Chief Recovery Officer, issue a summons (which must be served personally) to require the debtor to appear for examination before the Court. (8) If a debtor fails to appear as required by the summons, the Court may issue a warrant to have the debtor arrested and brought before the Court for examination. (9) If, after examination of a debtor conducted in accordance with procedures prescribed by rules of the Court, the Court is satisfied that— (a) the debtor has, without proper excuse, failed to comply with the determination under subsection (1); and (b) at least 2 instalments are in arrears, the Court may commit the debtor to prison for not more than 40 days. (10) If payment of the debt or all arrears of instalments (as the case requires) is made— (a) the Chief Recovery Officer must issue a certificate certifying that the payment has been made; and (b) the debtor must be discharged from custody even though the period of imprisonment has not expired. 62—Garnishment (1) The Chief Recovery Officer may determine that— (a) money owing or accruing to a debtor from a third person; or (b) money of a debtor in the hands of a third person (including money in an ADI account), is to be attached to satisfy a debt owed by the debtor. (2) If the Chief Recovery Officer makes a determination under subsection (1)— (a) the Chief Recovery Officer must, in addition to giving the debtor an enforcement notice in relation to the determination, give written notice of the determination to the garnishee; and (b) the garnishee may apply in a form approved by the Chief Recovery Officer for review of the determination (an internal review) (and section 52 applies to the application as if it had been made under that section). (3) Notice to a garnishee under subsection (2)(a) must include advice to the garnishee of the garnishee's right to apply for internal review of the determination. (4) Despite section 51, a determination may come into force before an enforcement notice has been given to the debtor, and before the garnishee has been notified of the determination, but in that case the determination will operate to restrain the garnishee from dealing with money to which the determination relates until both the debtor and the garnishee have had an opportunity to apply for internal review of the determination. (5) In deciding whether to make, vary or confirm a determination under this section affecting money of a natural person, the Chief Recovery Officer should have due regard to any evidence placed before the Officer as to— (a) the debtor's means of satisfying the debt; and (b) the necessary living expenses of the debtor and the debtor's dependants; and (c) other liabilities of the debtor. (6) A determination under this section may authorise the garnishee to retain from the money subject to the attachment a reasonable sum, fixed by the written determination, as compensation for the garnishee's expenses in complying with the determination. (7) A determination cannot be made under subsection (1) in respect of salary or wages unless the debtor consents to the making of the determination but, once that consent has been given, the extent to which the salary or wages are attached is in the discretion of the Chief Recovery Officer. (8) The Chief Recovery Officer— (a) may, on application by a debtor, rescind, suspend or vary a determination under subsection (1) if the Chief Recovery Officer is satisfied that there has been a relevant change in the debtor's circumstances; and (b) must give the debtor and the garnishee written notice of the Chief Recovery Officer's decision on the application. (9) Written notice of a decision under subsection (8) is to be taken to be an enforcement notice for the purposes of this Part. (10) If the Chief Recovery Officer decides under subsection (8) to vary a determination under subsection (1), the garnishee may apply for review of the decision (an internal review) (and section 52 applies to the application as if it had been made under that section). (11) Notice to a garnishee under subsection (8)(b) must include advice to the garnishee of the garnishee's right to apply for internal review of the determination. (12) A garnishee must comply with a determination under this section. (13) If the garnishee does not comply with a determination under this section, the garnishee becomes personally liable for payment to the Chief Recovery Officer of the amount subject to attachment. (14) Subsections (12) and (13) do not apply to a garnishee if the garnishee has not been notified of the determination. (15) If, because a determination has been made under this section in relation to an employee, the employer— (a) dismisses the employee; or (b) injures the employee in employment; or (c) alters the employee's position to the employee's prejudice, the employer is guilty of an offence. (16) A reference in this section to a third person includes the Crown or any person or body holding money on behalf of the Crown. 63—Seizure and sale of assets (1) The Chief Recovery Officer may determine to sell the land or personal property of a debtor to satisfy the debt owed by the debtor. (2) A determination may not be made under subsection (1) in relation to personal property that could not be taken in bankruptcy proceedings against the debtor. (3) The Chief Recovery Officer may, pursuant to a determination under this section— (a) enter the land (using such force as may be necessary for the purpose) on which property to which the determination relates, or documents evidencing title to such property, are situated; and (b) seize and remove any such property or documents; and (c) place and keep any such property or documents in safe custody until completion of the sale; and (d) sell any personal property to which the determination relates (whether or not the Chief Recovery Officer has first taken steps to obtain possession of the property); and (e) sell an interest of the debtor in land to which the determination relates. (4) If the determination provides for the sale of an interest in land, the Chief Recovery Officer may eject from the land any person who is not lawfully entitled to be on the land. (5) The Chief Recovery Officer may, in appropriate cases, leave a debtor in possession of property until it is sold in accordance with the determination. (6) The Chief Recovery Officer (on behalf of the Crown) has the same powers in respect of an interest of a debtor in land the Officer determines to sell under this section as are given by the Real Property Act 1886 to a mortgagee under a mortgage in respect of which default has been made in payment of money secured by the mortgage (and sections 132 to 135 (inclusive) and 136 of that Act apply accordingly as if the Officer were the mortgagee and the debtor were the mortgagor). (7) If the Chief Recovery Officer determines under this section to sell an interest in real property of a debtor— (a) the Officer must provide the Registrar-General with written notification of the determination; and (b) the Registrar-General must note the determination in the Register Book or the Register of Crown Leases; and (c) the determination will be taken to be a mortgage registered under the Real Property Act 1886. (8) The sale of tangible personal property will be by public auction (but if no bid that the Chief Recovery Officer considers acceptable is made at auction, the Chief Recovery Officer may proceed to sell the property by private treaty for a price not less than the highest bid). (9) If there is a reasonable possibility of satisfying the debt out of personal property, the Chief Recovery Officer should sell personal property before proceeding to sell an interest in real property. (10) If any part of the debtor's property consists of intangible property, the Chief Recovery Officer may sign any transfer or do anything else necessary to convert that property into money. (11) If property of the debtor seized under the determination consists of a bank note or other money, the Chief Recovery Officer must, unless it has a value greater than its face value, retain it in full or partial satisfaction of the debt. (12) The purchaser of personal property sold by authority of the Chief Recovery Officer under this section acquires a good title to the property subject only to registered interests and interests of which public notice has been given pursuant to statute. (13) If, before the date of sale of property, a person claims to have an unregistered interest in the property, and gives notice of the claim to the Chief Recovery Officer, the Chief Recovery Officer must, if the claim is not disputed— (a) pay the claimant out of the proceeds of the sale of the property a sum sufficient to satisfy the claim; or (b) where appropriate to do so, withdraw the property from sale and give possession of it to that person. 64—Charge over land (1) The Chief Recovery Officer may determine that a debtor's interest in real property is to be charged with the debt owed by the debtor or part of the debt. (2) If the Chief Recovery Officer makes a determination under subsection (1), the Chief Recovery Officer may apply to the Registrar‑General in the form determined by the Registrar‑General to register a charge over the interest of a debtor in land owned (whether solely or as a co‑owner) by the debtor for the amount of the debt or part of the debt. (3) On receipt of an application under subsection (2), the Registrar‑General must enter an appropriate note in the Register Book or the Register of Crown Leases and, when that entry is made, a charge is created over the interest of the debtor in the land in favour of the Chief Recovery Officer on behalf of the public authority to whom the debt is owed by the debtor. (4) The effect of the charge is as follows: (a) the Registrar‑General must not, after entry of the note under subsection (3), register an instrument affecting the interest of the debtor in the land over which the charge exists unless— (i) the instrument— (A) was executed before the entry was made; or (B) has been executed under or pursuant to an agreement entered into before the entry was made; or (C) relates to an instrument registered before the entry was made; or (ii) the instrument is an instrument of a prescribed class; or (iii) the instrument is expressed to be subject to the operation of the charge; or (iv) the instrument is a duly stamped conveyance or transfer that results from the exercise of a power of sale under a mortgage, charge or encumbrance registered before the entry was made; (b) the Chief Recovery Officer (on behalf of the relevant public authority) has the same powers in respect of the interest of the debtor in the land over which the charge exists as are given by the Real Property Act 1886 to a mortgagee under a mortgage in respect of which default has been made in payment of money secured by the mortgage (and sections 132 to 135 (inclusive) and 136 of that Act apply accordingly as if the Officer were the mortgagee and the debtor were the mortgagor). (5) An instrument registered under subsection (4)(a)(i) or (ii) has effect, in relation to the charge, as if it had been registered before the entry was made. (6) If an instrument registered under subsection (4)(a) has the effect of conveying or transferring the interest of the debtor in the land to another person, the charge will be taken to be cancelled by the registration of the instrument and the Registrar-General must take whatever action the Registrar-General considers appropriate to give effect to the cancellation. (7) The Chief Recovery Officer will apply to the Registrar‑General, in the form determined by the Registrar‑General, to have the registration of a charge under this section cancelled— (a) on the debt owed by the debtor being fully satisfied; or (b) if the Chief Recovery Officer considers, in the circumstances of the particular case, that it is just to do so, (and the Registrar‑General must then cancel the relevant entry). (8) Any fees incurred in relation to registration (or cancellation of registration) under this section are added to and form part of the debt owed by the debtor. (9) A person must, in accordance with the written request of the Chief Recovery Officer, produce to the Officer documents or other material in the possession of the person relating to the title of a debtor to real property owned by the debtor. 65—Charge over other property (1) The Chief Recovery Officer may determine that a debtor's interest in property is to be charged with the debt owed by the debtor or part of the debt. (2) If the Chief Recovery Officer determines under subsection (1) to charge a debtor's interest in property, the Chief Recovery Officer may— (a) do anything necessary to ensure that the charge is registered; or (b) make any necessary consequential determination (which will have effect according to its terms) prohibiting or restricting dealings with the interest in the property subject to the charge; or (c) take any other action authorised by regulations made for the purposes of this section.