Affidavit and Application for Provisional Garnishee Order Attaching a Debt (Form 25A)

Once a judgment creditor has a money judgment, Division 2 of Part 8 of the Magistrates Court (Civil Division) Rules 1998 (Tas) lets them attach debts owed to the judgment debtor by a third person, the garnishee. On a written application accompanied by an affidavit in the approved form, a registrar may, without anyone attending, make a provisional order attaching all debts owing or accruing from the garnishee to the judgment debtor and requiring the garnishee to hold them until the order is made final or discharged (r 127(1)). Form 25A is that application and affidavit. The court's civil disputes page says a debt garnishee can be directed to a bank or financial institution where the debtor has an account, or to anyone else who holds money for the debtor, such as a real estate agent collecting rent. Wages and salary are dealt with separately (r 125(2)); use Form 25E for those.

When you need it

• You have a judgment of the Magistrates Court of Tasmania for money that has not been paid in full.
• You know of a bank, financial institution or other person who owes or holds money for the judgment debtor and is within the jurisdiction of the Court.
• You are the judgment creditor, or the legal practitioner or agent acting for them.

1. 1

   Court and parties

   Enter the Magistrates Court location and action number. Give the judgment creditor and judgment debtor by name only, and the garnishee's full name and address (the registered office if it is a company), with phone, fax and DX if known.

2. 2

   Deponent and capacity

   Fill in the name and address of the person swearing the affidavit, and strike out the words that do not apply in paragraph 1 to show whether you are the judgment creditor or their legal practitioner or agent.

3. 3

   The judgment and what is owing

   In paragraphs 2 to 4 state the date of judgment, the judgment amount with the interest and costs it includes, any amount the debtor has paid since, and the balance still due and unpaid.

4. 4

   Identify the garnishee

   In paragraph 5 name and describe the garnishee who is indebted to the judgment debtor, for example the bank and branch, and confirm it is within the jurisdiction.

5. 5

   Swear or affirm it

   Sign before a justice of the peace or another person authorised to take affidavits (r 62). The jurat says "in Tasmania"; if you swear it elsewhere in Australia, it must be before a person authorised to administer oaths there (r 62(2)).

• The court's civil disputes page says to file one copy of Form 25A with three copies of the Provisional Garnishee Order Attaching a Debt (Form 25B) at the Magistrates Court. Copies of the provisional order are returned to you.
• Serve the provisional order on the garnishee and the judgment debtor as soon as possible after it is made (r 128(1)). Any person may serve it (r 128(2A)); service on the debtor can be at their address for service, usual residence or place of employment or business (r 128(2)). Service binds the debts in the garnishee's hands (r 128(3)).
• Complete an affidavit of service for each person served. If neither the garnishee nor the debtor files a notice disputing the debt within 21 days after service, you can apply for the final order (Form 25D) (r 129).
• A fee applies: the Civil Division fee table includes a filing fee on enforcement process. Check the current amount on the fees page. The fixed costs of garnishee proceedings are set by item 4 of Part 3 of Schedule 1 (r 127(3)).

• The court's page says a bank garnishee takes only the money in the account at the date of the order. If that does not cover the debt, you can apply for another garnishee order.
• An enforcement process will not be issued on a judgment more than 6 years old without the leave of the Court (r 121).
• Where 2 or more provisional orders over the same debt are served on a garnishee, they rank in the order they were served (r 129E).