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No Limitation on Enforcement of Judgements

Feb 12, 2016

Roman law was unsympathetic to debtors:

‘Originally there was no execution upon the debtor’s assets at all. In the event of non payment, the creditor’s only resort was execution upon the person, whom he could kill or imprison as a hostage or hold as a bond-servant or sell as a slave; where there were several creditors, they could as the Twelve Tables show, cut him into pieces. The creditor could also establish himself in the home of the debtor, and the latter would have to serve and provide for him (Einleger); but this already marks the transition to liability of the debtor’s assets. (Max Weber 1978 p.680)

The Romans did become more commercially pragmatic:

‘Traditionally a lex Poetelia dated at 326 B.C. …is reported to have prohibited the chaining and the killing of the debtor and to have compelled the creditor to accept the debtor’s willingness to ward off the debt.’ The date is said to be uncertain. (Max Weber 1978 footnote 38 p. 738)

Many "free legal advice" websites state that there is a limitation period on enforcement of judgments in South Australia. Is that right? Well, you get what you pay for.

First common mistake is that enforcement of a judgment is not an action on a judgment.  See Dennehy v Reasonable Endeavours Pty Ltd, in the matter of Dennehy (A Bankrupt) [2003] FCAFC 158. Also Lowsley and Another v. Forbes (Trading as LE Design Services) [1998] UKHL 34.

In South Australia there is no limitation period for enforcement of a judgment debt. Rules of Court may put hurdles in the way of enforcement of old judgments, but they must succumb to the law.


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