Stephen Warne on professional negligence, regulation and discipline around the world

The Australian Professional Liability Blog random header image

How long is a judgment good for?

April 10th, 2010 · No Comments

From the point early on in my career when I thought I learnt that a judgment was good for 15 years until Marcellous’s comment the other day, I laboured under a misapprehension. In fact, according to the Full Federal Court in Dennehy v Reasonable Endeavours Pty Ltd [2003] FCAFC 158; (2003) 130 FCR 494, there is no time limit for executing on a judgment, though rules of court contain some restrictions on issuing warrants long after the judgment was given.  For example, after six years from the giving of a judgment by the Supreme Court, one must obtain leave of the Court before obtaining a warrant of seizure and sale, a warrant of possession, or a warrant of delivery: r. 68.02(1)(a).  The application may be made ex parte, and must be accompanied by an affidavit explaining the reason for the delay: r. 68.02(3) and (4)(b).  But warrants are only one way of debt collection.  Self-help may be available; sending some friends to the debtor’s door and requesting payment certainly is; and so too may the defence of set-off be relevant to the adjustment of interests between two parties.

Section 5(4) of the Limitation of Actions Act, 1958 says

‘An action shall not be brought upon any judgment after the expiration of fifteen years from the date on which the judgment became enforceable.’

Sub-section (7) says:

‘Save as otherwise expressly provided an action shall not be brought to recover any arrears of interest in respect of any sum of money whether payable in respect of a … judgment … or any damages in respect of such arrears, after the expiration of six years after they became due.’

Justice Finkelstein, with whom Justices Madgwick and Dowsett agreed, held that:

‘s 5(4) only affects new actions upon a judgment and does not deal with steps taken in the enforcement of a judgment. The only “limitation” which applies to the enforcement of a judgment obtained in the Supreme Court of Victoria is that contained in the rules of the Supreme Court. 19 The same result must follow in relation to s 5(7).’

His Honour commented that whether this was so was a surprisingly difficult question, and that ‘the area generally remains something of a mystery’.  The thing is that no one brings ‘actions upon a judgment’ these days; folks only execute on judgments these days.  So one naturally reads the law as having operation in relation to the only thing one knows people do with judgments.  Justice Finkelstein explained what an ‘action upon a judgment’ is (or was):

‘a new action which is based on a judgment debt. Such an action is probably obsolete. But it once had a purpose. For example, …. at common law a judgment could not be enforced after a year and one day. However, within that period a plaintiff could take proceedings by action in debt on the judgment: Chitty’s Archibald’s Practice 12th ed, vol 2, 1866, 1123; Shaw v Allen (1914) 30 TLR 631. If the plaintiff obtained a fresh judgment, time would start to run again. Presumably, the plaintiff could continuously renew a judgment in this fashion, at least until the court decided that he was acting in abuse of its processes.’

See also:

Tags: Limitations of actions