ATTACHMENT FOR DEBT

Sun (Auckland), Volume III, Issue 754, 29 August 1929, Page 6

ATTACHMENT FOR DEBT

SALARIES OVER £2 INTERPRETATION OF LAW {From Our Oten Correspondent} HAMILTON, Wednesd&r. An interesting interpretation of the existing law as to the discretion of a magistrate to make absolute an attachment order interlocutory obtained against the salary of a judgment debtor was given by Mr. Wyvern Wilson, S.M., in the Hamilton Magistrate's Court yesterday. The interpretation applied to a case in which the wages were in excess of £2 a week and where hardship was pleaded by the debtor. His Worship said, in a written judgment, the sub-debtor was summoned for examination in Auckland, but did not appear. The judgment debtor there placed his circumstances before the magistrate and he had now filed an aflidavit verifying them. It appeared he was a married man with three children and depended upon his salary from month to month for maintenance. He had been previously examined on a judgment summons when the order was refused, the court being satisfied at the time that he had insufficient means to pay this debt and maintain his family. For the judgment debtor it was contended that the Hamilton Court should exercise its discretion and decline to make the order absolute. He then quoted several cases bearing upon the matter and added that the dismissal of a judgment summons against a debtor meant no more than that he had not since the date of the judgment had sufficient means to pay the debt and maintain himself as well. It did not restrict the right of a creditor to proceed against the assets of his debtor by means of execution.

In New Zealand, said his Worship, the Wages Protection Act provided by Section 27, that if the amount of wages exceeded the rate of £2 a week any surplus above that sum should be liable to attachment. The protection afforded by that section had been reduced so far as single men were concerned to enable all wages above the sum of £1 a week to be attached in the enforcement of a judgment obtained under that Act. The magistrate said he did not think that a judgment debtor should receive immunity from attachment except for a reasonable or sufficient cause. He could not see that he should be entitled to a greater protection on these proceedings than he would be against an execution to be levied upon chattels. A debtor then was only entitled to a stay of execution "if he was unable from sickness or other cause to pay.” In the County Court rule the phrase used was “other sufficient cause,” and it had been held in the case of Attenborough v. Henschel that “mere impecuniosity” was not a sufficient cause for a stay of execution and that there must be “something more than evidence of mere insufficiency of means ”