Before taking the costly step of winding up or bankruptcy, there are often faster and more effective options. In this Q&A, Jason Polese, Barrister and Mediator at 4 Wentworth Chambers, shares practical insights on when and how to use enforcement alternatives such as writs, garnishees and examinations and when it’s time to escalate.
Why should creditors or practitioners consider alternatives to winding up or bankruptcy before taking those steps?
Risks, costs and case by case situations. Garnishee orders, writs and other enforcement processes can be more cost effective and streamlined. Bankruptcy and winding up is limited to situations of insolvency. If someone or a company is not bankrupt/ insolvent, then winding up/ stat demands and bankruptcy notices and creditors petitions are not appropriate. Also, the winding up and bankruptcy processes are litigation in of their own, meaning they can be defended and protracted.
In your experience, which alternative enforcement method delivers the most practical results - writs, garnishees, or examinations and why?
Examinations, are usually the most practical, cost effective and achieve the best results. They often lead to capitulation, with full payment or payment plans that allow both parties to agree to and adhere to, due to court pressure and the risk of bench warrants if a debtor is non-compliant.
What key factors influence your decision on whether to pursue a writ for the levy of property?
What is the property worth? How easily accessible is it? What is the judgment debt worth? What are the risks and likely defences or applications in response?
What kinds of assets are most effectively recovered under a writ, and where do practitioners often run into dead ends?
Usually, chattels and personal property are the most effectively recovered. Risk of dead ends include when proper searches have not been done in advance (PPSR and title searches etc) and where there may be complicated ownership structures, trusts etc.
When does a garnishee order become a better option than winding up or bankruptcy?
Most of the time, bank and wage garnishee orders are generally quite effective. Winding up and bankruptcy are a litigation beast of their own and have their own risks. Most people are not aware that the most basic defence in many insolvency applications is “I am not insolvent, I just don’t want to pay the debt”.
What due diligence should be done before pursuing a garnishee order, especially regarding the debtor’s bank accounts or income?
Personal searches, PPSR searches, sometimes it may require a PI/ investigator to perform some of their own searches and uncover information. Usually, you would perform examination, either a notice and, if not complied with an order. A good garnishee order and one that is usually simple to find, is the debtor’s employer. Banks can sometimes be a bit trickier but can also work, if you know they have an account/s with that specific bank.
How can examination notices or orders be used strategically to identify assets or apply pressure without breaching ethical boundaries?
If you don’t have enough information on the debtor to enforce then there is no issue, ethical or legal to issue examination notices and orders. If the debtor repeatedly refuses to engage or comply, then this can lead to a bench warrant, which even though is an extreme measure, will apply sufficient pressure, and is both ethical and legal, given that it is often used as a last resort.
What are the most common procedural or timing pitfalls practitioners face with these alternative remedies?
Essentially, jumping the gun. Don’t issue garnishee orders without sufficient information. Also, most winding up and bankruptcy processes have very specific time frames. Creditor’s petitions for example, must be filed within 6 months of the act of bankruptcy, unless the court extends it and often this will be overlooked and the creditor’s petition dismissed. Also, as an example, the presumption of insolvency created by a statutory demand that is not set aside or withdrawn only lasts for 3 months, so an application to wind up must be made within that 3-month period.
Have recent cases or procedural trends made courts more open to, or more restrictive of, these enforcement alternatives?
I’d say there is more of a trend and openness of courts to allow for bankruptcy and winding up proceedings. There has been however, more strict processes in the local and district courts of NSW when applying for garnishee orders and writs.
What’s your key takeaway for practitioners, when is it time to move from alternatives to winding up or bankruptcy?
Personally, I think the best enforcement is one where the debtor agrees to pay, so consultation, mediation etc. with the debtor could be the key. If you simply have a “runner” then engaging competent investigators and doing the research and searches is important. Bankruptcy and insolvency should be a final resort and writs for levy of property and garnishee orders can often do the trick and as stated above, examinations, can often push debtors into settlement.
Jason will explore these issues further in his session ‘Alternatives to Winding Up and Bankruptcy Actions’ at Debt Recovery: A Practical Guide on Wednesday, 12 November 2025, covering:
Writs for the levy of property
Garnishee orders
Examination notices and orders
Practical enforcement alternatives
Jason Polese, Barrister & Mediator, 4 Wentworth Chambers
Jason practises in general commercial litigation, with a keen interest in consumer law, property and employment. Jason has appeared and been involved in all NSW civil jurisdictions, including the NCAT, Local Court, District Court, Supreme and Federal Courts, on a wide variety of matters including, business and commercial disputes, corporate litigation including statutory demands and winding up, bankruptcy, partnership matters, employment, equity and trust matters, and debt recovery. Prior to being called to the Bar, Jason worked as a solicitor in small firms, with a hands-on approach to clients. Previous to being admitted as a Lawyer, Jason was a hospitality Guru, managing employees and businesses for large restaurant groups, international hotels and running businesses of his own. As a Lawyer, Jason has brought this business “know-how” to assist commercial clients with his insight and understanding of the business and hospitality domain. His main areas are commercial and corporate litigation, property, insolvency and bankruptcy, building and construction and employment.