Version No. 050
Imprisonment of Fraudulent Debtors Act 1958
Act No. 6276/1958
Version incorporating amendments as at 16 September 1999
table of provisions
SectionPage
1
SectionPage
1.Short title and commencement
2.Repeal
PART 1—ON JUDGMENT OF SUPREME COURT
3.Imprisonment upon writ of capias ad satisfaciendum abolished
4.Debtor may be summoned
5.Debtor may be examined and imprisoned
6.Examination may be had on the original hearing
7.Form of warrant of commitment
8.Order may be ex parte
9.Judgment debtor may appeal to Full Court
10.Prisoner to be discharged on payment of debt and costs
11.Examination to be taken down in writing
12.Examination to be a judicial proceeding
13.Effect of this Part of this Act
PART 2—ON JUDGMENT OF COUNTY COURT
14.Imprisonment for debt abolished in county court
15.Judgment debtor may be summoned
16.Judgment debtor may be examined and imprisoned
17.Examination may be had on the original hearing
18.Form of warrant of commitment
19.Order may be ex parte
20.Prisoner to be discharged on payment of debt and costs
21.Examination to be a judicial proceeding
PART 3—ON ORDER OF MAGISTRATES' COURT
22.Defendants in civil cases not to be imprisoned except under certain circumstances
23.Warrant in default of compliance
24.Ex parte order of commitment
25.Debtor, how discharged
26.Non-application of Magistrates' Court Act
27.Examination to be a judicial proceeding
28.Imprisonment for fraud no satisfaction of debt
28A.Appeal to County Court
PART 4—GENERAL
29.Judgment need not necessarily be served before fraud summons under Parts 1, 2 and 3
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SCHEDULES
SCHEDULE 1—Repeals
SCHEDULE 2—Supreme Court forms
Form 1—Summons to debtor
Form 2—Order for commitment in default of payment
Form 3—Warrant of commitment
Form 4—Warrant of commitment on exparte application
SCHEDULE 3—County Court forms
Form 1—Summons to debtor
Form 2—Order for commitment in default of payment
Form 3—Warrant of commitment
Form 4—Warrant of commitment on exparte application
SCHEDULE 4—Magistrates' Court forms
Form 1—Summons to debtor
Form 2—Order for commitment in default of payment
Form 3—Warrant of commitment
Form 4—Warrant of commitment on ex parte application
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ENDNOTES
1. General Information
2. Table of Amendments
3. Explanatory Details
1
Version No. 050
Imprisonment of Fraudulent Debtors Act 1958
Act No. 6276/1958
Version incorporating amendments as at 16 September 1999
1
Imprisonment of Fraudulent Debtors Act 1958
Act No. 6276/1958
An Act to consolidate the Law relating to the Imprisonment of Fraudulent Debtors.
BE IT ENACTED by the Queen's Most Excellent Majesty by and with the advice and consent of the Legislative Council and the Legislative Assembly of Victoria in this present Parliament assembled and by the authority of the same as follows (that is to say):
S. 1
amended by Nos 7876 s.2(3), 57/1989 s.3(Sch. item98.1).
1.Short title and commencement
This Act may be cited as the Imprisonment of Fraudulent Debtors Act 1958, and shall come into operation on a day to be fixed by proclamation of the Governor in Council published in the Government Gazette.
2.Repeal
(1)The Acts mentioned in the First Schedule to the extent thereby expressed to be repealed are hereby repealed accordingly.
(2)Except as in this Act expressly or by necessary implication provided—
(a)all persons things and circumstances appointed or created by or under the repealed Acts or existing or continuing under any of such Acts immediately before the commencement of this Act shall under and subject to this Act continue to have the same status operation and effect as they respectively would have had if such Acts had not been so repealed;
(b)in particular and without affecting the generality of the foregoing paragraph such repeal shall not disturb the continuity of status operation or effect of any order warrant arrest certificate direction appeal proceeding power notice obligation saving liability or right made effected issued granted given presented passed fixed accrued incurred or acquired or existing or continuing by or under any of such Acts before the commencement of this Act.
s. 2
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Part I—On Judgment of Supreme Court
No. 3700 s.3.
3.Imprisonment upon writ of capias ad satisfaciendum abolished
s. 3
No person shall be arrested or imprisoned or detained in prison upon any writ of capias ad satisfaciendum issued out of the Supreme Court after or before the passing of this Act, any law or practice of such court to the contrary notwithstanding.
No. 3700 s.4.
S. 4
amended by No. 110/1986 s.140(2).
4.Debtor may be summoned
Whenever any sum of money recoverable under any judgment of the Supreme Court remains unsatisfied in the whole or in part, it shall be lawful for the person entitled to recover such money (whether or not any execution has issued upon or under such judgment) to obtain from time to time from the prothonotary a summons in the form contained in the Second Schedule to this Act or to the like effect directed to the person liable to pay such money; and such summons shall be served personally; and if he appears in pursuance of such summons, he may be examined upon oath by the Supreme Court touching his estate and effects and as to the property and means he has or has had of paying satisfying and discharging such sum of money or such part thereof as remains unsatisfied and as to the disposal he may have made of any property and as to his intention to leave Victoria without paying such money as is still unsatisfied or to depart elsewhere within Victoria with intent to evade payment thereof and as to the mode in which the liability the subject of such judgment was incurred; and the person obtaining such summons as aforesaid and all other witnesses whom the court thinks requisite may be examined upon oath touching the inquiries authorized to be made as aforesaid.
Nos 3700 s.5, 4876 s.2(1).
5.Debtor may be examined and imprisoned
s. 5
(1)If a person summoned as aforesaid—
(a)does not attend as required by such summons or allege a sufficient excuse for not attending; or
(b)if attending, refuses to be sworn or to disclose any of the things aforesaid; or
S. 5(1)(c) amended by Nos 110/1986 s.140(2), 57/1989 s.3 (Sch. item 98.2(a)).
(c)does not make answer touching the same to the satisfaction of the Court; or
S. 5(2) amended by Nos 110/1986 s.140(2), 57/1989 s.3 (Sch. item 98.2(b)).
(2)If it appears to the satisfaction of the Court by oral testimony or affidavit or both that such person—
S. 5(2)(a) repealed by No. 10063 s.23(a).[1]
*****
S. 5(2)(b) substituted by No. 10063 s.23(b).
(b)is about to leave Victoria without paying the debt damages costs or money so recovered against him and so unsatisfied as aforesaid or any instalment thereof when an order to pay by instalments has been made; or
(c)is about to depart elsewhere within Victoria with intent to evade payment thereof; or
S. 5(3) amended by Nos 110/1986 s.140(2), 57/1989 s.3 (Sch. item 98.2(b)(c)).
(3)If it appears to the satisfaction of the Court by oral testimony or affidavit or both that such person if a defendant incurring the liability which is the subject of the action or proceeding in which judgment has been obtained—
(a)obtained credit or contracted such liability under false pretences or by means of fraud or breach of trust; or
(b)has made or caused to be made any gift delivery or transfer of any property, or has charged removed or concealed the same with intent to defraud his creditors or any of them—
s. 5
it shall be lawful for the Court, if it thinks fit, to make an order in the form contained in the Second Schedule to this Act or to the like effect that unless such person pays into such court either forthwith or within the time limited in such order and either in one sum or by such instalments as the court orders the money so unsatisfied with interest thereon at such rate as the court directs not exceeding Eight per centum per annum and the costs to be fixed in such order of any fruitless writs or warrants of execution and of levies thereunder together with such costs of and occasioned by such summons and examination as are directed by the order, he shall be committed to prison for a term of not more than six months.
If none of the matters referred to in paragraph (2) or paragraph (3) of this section is proved to the satisfaction of the Court, the Court may order the person obtaining such summons to pay to the person summoned such costs of and occasioned by such summons and examination (including costs and expenses of his attending court) as to the Court seem just and reasonable.
No. 3700 s.6.
S. 6
amended by Nos 110/1986 s.140(2), 57/1989 s.3(Sch. item.3).
6.Examination may be had on the original hearing
s. 6
In any case in which any defendant in any action in the Supreme Court in respect of any cause or causes of action aforesaid personally appears at the trial or hearing of the same, the court at the trial or hearing of the cause or at any adjournment thereof, if a verdict is found against the defendant, shall have the same power and authority of examining the plaintiff and defendant and other persons touching the things hereinbefore in the last preceding section mentioned and of making an order as the Court might have exercised under the provisions hereinbefore contained in case the plaintiff had obtained a summons for that purpose after judgment as hereinbefore mentioned.
No. 3700 s.7.
7.Form of warrant of commitment
Whenever any order for commitment has been made under the provisions hereinbefore contained and the money interest and costs or any instalment of such money interest and costs named therein has or have not been paid into court in pursuance thereof, the prothonotary shall without any previous notice or summons to the party required to pay the same issue a warrant in the form in the Second Schedule to this Act or to the like effect; and the sheriff and the keeper of the gaol to whom such warrant is directed shall respectively execute and obey the said warrant; and all members of the police force shall aid and assist in the execution of such warrant.
No. 3700 s.8.
S. 8
amended by Nos 110/1986 s.140(2), 57/1989 s.3(Sch. item98.4).
8.Order may be ex parte
Any order for commitment under the provisions hereinbefore contained may (if the special circumstances of the case appear to the court to warrant it) be made by the Court ex parte and without notice on proof by affidavit only of any of the matters aforesaid; and in that case such order for commitment may be filed in the Supreme Court; and such person may be dealt with as if an order for commitment had been made as hereinbefore directed, and the warrant to be issued by the prothonotary in such case shall be in the form or to the effect in the Second Schedule to this Act.
No. 3700 s.9.
S. 9
amended by Nos 110/1986 s.140(2), 57/1989 s.3(Sch. item98.5).
9.Judgment debtor may appeal to Full Court
s. 9
Any judgment debtor or defendant aggrieved by any order for commitment made under the preceding sections may, upon entering into such recognisance and subject to such terms and conditions as the court thinks fit, appeal against such order to the Full Court; and the Full Court shall have power to review the same and to confirm vary annul or discharge the same and to make such order as to the costs of such appeal as appears fit to the Full Court.
No. 3700 s.10.
S. 10 amended by No. 110/1986 s.140(2).
10.Prisoner to be discharged on payment of debt and costs
Any person imprisoned by virtue of any warrant under this Part, who pays or satisfied the sum or sums mentioned in the order for commitment shall be discharged out of custody upon the certificate of such payment or satisfaction signed by the prothonotary. Notwithstanding the provisions hereinbefore contained, it shall be lawful for the Supreme Court at any time by order (if in the special circumstances of the case it thinks fit so to do) to direct that any person in gaol or custody under any such order shall be forthwith discharged and such person shall be forthwith discharged accordingly.
No. 3700 s.11.
11.Examination to be taken down in writing
s. 11
The examination of such person liable to pay money as aforesaid shall be taken down in writing; and a copy thereof may be used on the hearing of any appeal from any order for commitment.
No. 3700 s.12.
12.Examination to be a judicial proceeding
The examination of any person examined under any of the provisions of this Part shall be deemed to be a judicial proceeding; and every person in any such examination wilfully knowingly and corruptly giving or making any untrue or false answer statement or declaration shall be liable to the penalties of perjury.
No. 3700 s.13.
13.Effect of this Part of this Act
Imprisonment under this Part shall not operate as a satisfaction or discharge of the amount due on any judgment, but notwithstanding such imprisonment a fresh writ or warrant against the property or other proceedings to recover the amount may be issued on such judgment and executed in due course of law.
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Part II—On Judgment of County Court
No. 3700 s.14.
S. 14 amended by No. 19/1989 s.16(Sch. item 27.1).
14.Imprisonment for debt abolished in county court
s. 14
It shall not be lawful for the registrar or a deputy registrar of the county court to issue a warrant of commitment upon a return made to any warrant of execution that the bailiff or officer could find no sufficient property of the person against whom such warrant has issued liable to satisfy such execution; and no person shall be arrested or imprisoned in execution upon or in satisfaction of any judgment or order recovered or obtained in the county court, save in the special cases where such court is empowered by law to make an order for commitment, and in no such case shall any person be committed for a longer period than four months.
No. 3700 s.15.
S. 15 amended by No. 19/1989 s.16(Sch. item 27.2).
15.Judgment debtor may be summoned
Whenever any sum of money recoverable under any judgment or order in the county court remains unsatisfied in the whole or in part, it shall be lawful for the person entitled to recover such money, whether any warrant of execution has or has not been issued for the same, to obtain from time to time from the registrar or deputy registrar of the court at the place at which such judgment or order was made a summons in the form contained in the Third Schedule to this Act or to the like effect, directed to the person liable to pay such money, and such summons shall be served personally; and if he appears in pursuance of such summons, he may be examined upon oath touching his estate and effects, and as to the property and means he has or has had of paying satisfying and discharging such sum of money or such part thereof as remains unsatisfied, and as to the disposal he may have made of any property, and as to his intention to leave Victoria without paying such money as is still unsatisfied, or to depart elsewhere within Victoria with intent to evade payment thereof, and as to the mode in which the liability the subject of such judgment or order was incurred; and the person obtaining such summons as aforesaid, and all other witnesses whom the court thinks requisite, may be examined upon oath touching the inquiries authorized to be made as aforesaid.
Nos 3700 s.16, 4876 s.2(2).
16.Judgment debtor may be examined and imprisoned
s. 16
(1)If a person so summoned as aforesaid—
(a)does not attend as required by such summons, or allege a sufficient cause for not attending; or
(b)if attending, refuses to be sworn or to disclose any of the things aforesaid; or
(c)does not make answer touching the same to the satisfaction of such court; or
(2)If it appears to the satisfaction of such court by oral testimony or affidavit or both that such person—
S. 16(2)(a) repealed by No. 10063 s.23(c).[2]
*****
S. 16(2)(b) substituted by No. 10063 s.23(d).
(b)is about to leave Victoria without paying the sum so recovered against him and so unsatisfied as aforesaid or any instalment thereof when an order to pay by instalments had been made; or
(c)is about to depart elsewhere within Victoria with intent to evade payment thereof; or
S. 16(3) amended by No. 19/1989 s.16(Sch. item 27.3
(a)–(d)).
(3)If it appears to the satisfaction of such court by oral testimony or affidavit, or both, that such person if a defendant incurring the liability which is the subject of the proceeding in which judgment has been obtained or an order has been made—
(a)obtained credit or contracted such liability under false pretences or by means of fraud or breach of trust; or
(b)has made or caused to be made any gift delivery or transfer of any property or has charged removed or concealed the same with intent to defraud his creditors or any of them—
s. 16
it shall be lawful for such court, if it thinks fit, to make an order in the form contained in the Third Schedule hereto or to the like effect that unless such party pays into such court either forthwith or within the time limited in such order and either in one sum or by such instalments as the court orders the money so unsatisfied, with interest thereon at such rate as the court directs, not exceeding five per cent per annum, and the costs of any fruitless warrants of execution and of levies thereunder together with such costs of and occasioned by such summons and examination as are directed by the order, he shall be committed to prison for a term of not more than four months.
If none of the matters referred to in paragraph (2) or paragraph (3) of this section is proved to the satisfaction of such court, such court may order the person obtaining such summons to pay to the person summoned such costs of and occasioned by such summons and examination (including costs and expenses of his attending court) as to such court seem just and reasonable.
No. 3700 s.17.
S. 17 amended by No. 19/1989 s.16(Sch. item 27.4).
17.Examination may be had on the original hearing
s. 17
In any case in which any defendant in any proceeding in the county court personally appears at the trial or hearing of the same, the court, at such trial or hearing of the same or at any adjournment thereof if judgment is given or an order is made against the defendant, shall have the same power and authority of examining the plaintiff and defendant and other persons touching the things hereinbefore mentioned, and of making an order as the court might have exercised under the provisions hereinbefore contained in case the plaintiff had obtained a summons for that purpose after judgment.
No. 3700 s.18.
18.Form of warrant of commitment
Whenever any order for commitment has been made under the provisions hereinbefore contained, and the money interest and costs or any instalment of such money interest and costs named therein has or have not been paid into court in pursuance thereof, the registrar of the court shall without any previous notice or summons to the party required to pay the same issue a warrant in the form in the Third Schedule to this Act or to the like effect; and the bailiff of the said court and the keeper of the gaol to whom such warrant is directed shall respectively execute and obey the said warrant and all members of the police force shall aid and assist in the execution of such warrant.