Affidavit and application for provisional garnishee order attaching earnings (Rule 921(1)) (Form 73)

Part 35 Division 6 of the Supreme Court Rules 2000 (Tas) deals with attachment of wages and salaries. Under rule 921(1), on the application of a judgment creditor accompanied by an affidavit in the prescribed form, a judge, the Registrar or a district registrar may make a provisional order, without anyone attending, that on each pay-day the garnishee (usually the employer) deduct the prescribed amount from the judgment debtor's earnings until the judgment and the costs of the garnishee proceedings are paid, and hold the deductions until the order is made final or discharged. The prescribed amount is 20% of net earnings, meaning earnings after the usual deductions listed in rule 920, such as tax instalments, health fund premiums, superannuation contributions and earlier attachment orders. Form 73 is that affidavit and application.

When you need it

• You hold an unpaid Supreme Court judgment or order for money, and the judgment debtor is employed or receives other periodic earnings.
• The employer or payer carries on business within the jurisdiction of the Court.
• The order can be made even if no earnings are owing at the time, or the amount is uncertain (r 921(3)).
• For a one-off debt owed to the debtor, such as money held in an account, use Form 69 instead.

1. 1

   Fill in the parties

   Name the judgment creditor, judgment debtor and garnishee (the employer) with the registry and proceeding number.

2. 2

   Identify the deponent

   Give the name, address and description of the person swearing it (the judgment creditor, or the creditor's practitioner or agent) and state that capacity.

3. 3

   Set out the judgment and the amount owing

   Give the date of judgment and the judgment debt, interest and costs, then the amount still due and unpaid, split into balance, interest and costs.

4. 4

   Describe the employment

   State that the judgment debtor is employed by the garnishee, giving the garnishee's name and address and the debtor's occupation, and that the garnishee carries on business within the jurisdiction.

5. 5

   Swear the affidavit and sign the application

   Swear or affirm the affidavit before an authorised witness. The judgment creditor or the creditor's practitioner signs and dates the application.

• File it at the registry where the judgment was entered (rr 83, 87A). It is dealt with on the papers (r 921(1)).
• The provisional order (Form 74) must be served on the garnishee and the judgment debtor as soon as possible after it is made (r 922(1)). Service binds the debtor's earnings as they become due in the garnishee's hands (r 922(3)).
• After 21 days from service, on proof of service, the order may be made final unless the garnishee or debtor disputes that earnings are payable, or the debtor files an objection claiming a reduction with a full statement of their financial position verified on oath or statutory declaration (r 923(1)).
• Costs of garnishee proceedings are fixed by the Table in Part 4 of Schedule 1 to the Rules (r 921(4)).

• Get the employer's correct legal name and business address. The order binds the garnishee named in it.
• Where two or more orders are served on the same employer on the same day, only one prescribed amount is deducted and it is shared equally (r 929(a)).
• Earnings do not include a pension, benefit or allowance payable under a Commonwealth law (r 920(1)).