Affidavit in support of application for attachment of earnings order (Form 72B)

Under rule 72.02 of the Magistrates' Court General Civil Procedure Rules 2020 (Vic), a judgment creditor applies for an attachment of earnings order by summons in Form 72A supported by an affidavit in Form 72B. The affidavit may contain statements based on information and belief if the grounds are set out (r 72.02(2), (3)). The court may make the order if satisfied that earnings are payable, or likely to become payable, to the judgment debtor and that the debtor has failed to comply with an order for the judgment debt (r 72.03(1)). The affidavit gives the court that evidence: the order, the amount unpaid, the debtor's employer, and whether any warrant to imprison the debtor under the Imprisonment of Fraudulent Debtors Act 1958 has been issued, because an attachment order cannot be made while such a warrant is unexecuted (r 72.02(5)).

When you need it

• You hold a Magistrates' Court order for money that the debtor has not paid, and you know who employs the debtor.
• You are filing an attachment of earnings summons (Form 72A); the two go together.
• The debtor has persistently failed to comply with an order of the court, which the form provides for as an alternative ground.

1. 1

   Fill in the heading

   Use the court number, venue, party names and addresses, then your filing details.

2. 2

   Paragraph 1: the order

   Give your name, occupation and address as judgment creditor, the date of the order, the debtor's name and the sum ordered.

3. 3

   Paragraph 2: what is owed

   Show the amount due and unpaid, broken down into the amount due under the order, the costs of this application, other costs since the order, and interest to date. Or, use the alternative: state that the debtor has persistently failed to comply with an order and set out the terms not complied with.

4. 4

   Paragraph 3: the employer

   Give the name and address of the debtor's employer and the debtor's occupation.

5. 5

   Paragraph 4: prison warrants

   State either that no warrant committing the debtor to prison under the Imprisonment of Fraudulent Debtors Act 1958 has been issued, or that one was issued and returned unexecuted.

6. 6

   Swear or affirm it

   Delete the inapplicable options and sign before an authorised affidavit taker (Oaths and Affirmations Act 2018 s 19(1)).

• File the original and two copies of the summons and this affidavit with the Magistrates' Court where the complaint was made, in person or by post, according to the court's guide. A filing fee is payable - check the current fee schedule.
• Serve the summons, a copy of this affidavit and a blank judgment debtor's statement of financial position (Form 72C) on the debtor not less than 14 days before the hearing day named in the summons (r 72.02(4)).
• Documents under Order 72 must be served personally or by registered post (r 72.16). The person who serves them completes an affidavit of service (Form 6A).

• Make sure the amounts match the Form 72A summons exactly.
• Earnings for this purpose do not include a pension under the Social Security Act 1991 or the Veterans' Entitlements Act 1986 (r 72.01). The court's guide says a debtor whose only income is from Centrelink cannot be put on an attachment of earnings order.
• Every judgment debt carries interest at the penalty interest rate from the date of the order (Magistrates' Court Act 1989 s 100(7)); show how you calculated it.