Application (Judgment Debt Recovery Act 1984) - instalment order (Form 61A)

Section 6 of the Judgment Debt Recovery Act 1984 (Vic) lets a judgment creditor or judgment debtor apply, at any time after judgment, for an order that the judgment debt or the balance owing be paid by instalments, or for a new instalment order in place of an earlier one. The application must state the amount owing and the proposed instalments and payment times (s 6(2)). Section 8 allows an application to vary or cancel an instalment order. Rule 61.02 of the Magistrates' Court General Civil Procedure Rules 2020 says an application under section 6 or 8 must be in Form 61A, must be filed, and if made by the judgment debtor must come with a statement of affairs in Form 61B (individual) or Form 61C (corporation). A registrar can decide a section 6 application without notice to the parties (s 6(3)).

When you need it

• You are the debtor and cannot pay the judgment in one sum, so you want to pay by weekly, fortnightly or monthly instalments.
• You are the creditor and want the court to set an instalment arrangement.
• You want a new instalment order in place of a current one, or to vary or cancel one under section 8. A creditor can seek variation or cancellation only on the grounds in s 8(2): a substantial increase in the debtor's property or means, or inaccurate information given to support the order.

1. 1

   Fill in the heading and order details

   Give the court number, venue, judgment creditor and judgment debtor, your filing details, and the court and date of the order. Tick the type of application (new, substitute, variation or cancellation).

2. 2

   Parts 1 and 2: the parties

   Say whether you are the debtor or creditor and give your name, address and phone numbers, then the respondent's name.

3. 3

   Part 3: the amounts

   Work through the calculation: claim, interest and costs ordered; less payments made since the order (with dates); plus interest to the date of the application and other recoverable amounts such as warrant costs; giving the total owing.

4. 4

   Part 3 continued: the proposal

   State the instalment amount, whether weekly, fortnightly or monthly, the proposed first payment date, and who payments are to be made to.

5. 5

   Parts 4 to 6

   For a variation, give the date of the current order and its instalment amount and frequency. Then give your reasons and any other relevant details, date it and sign.

6. 6

   Attach the statement of affairs

   If you are the debtor, the form's notes say a statement of affairs in Form 61B (or 61C for a corporation) must be filed with it.

• File the application (and statement of affairs, if you are the debtor) with the Magistrates' Court, in person or by post, according to the court's guide. A filing fee is payable - check the current fee schedule.
• Serve a copy on the other party (s 6(8)(a), s 8(3)). The court's guide says a debtor also serves their statement of affairs, and a creditor serves a blank Form 61B or 61C for the debtor to complete.
• File an affidavit or declaration of service within a reasonable time after service (r 61.02(2)). A section 8 applicant who does not is taken to have abandoned the application (r 61.02(3)).
• If either party disagrees with the registrar's decision, they can file a notice of objection in Form 61D within 14 days and the matter is set down for a hearing (s 6(5); r 61.03).

• From the time a section 6 application is served, it stays enforcement of the judgment until it is dealt with (s 6(8)(b)). A complied-with instalment order also stays enforcement (s 9).
• If a debtor's application is refused, the debtor cannot make another section 6 application within three months (s 6(9)).
• An instalment order cannot be made without the debtor's consent if the debtor's income comes solely from a pension, benefit or allowance of the kind described in s 12. The court's guide puts this as a debtor whose only income is Centrelink.
• A creditor applying under section 8 must support the application with an affidavit as to the grounds (s 8(4)).