Part 2 – Writ for the Levy of Property:
One of the most common forms of enforcement in the Local Court of New South Wales includes the Writ for the Levy of Property. This allows the sheriff to attend the property of a debtor and take possession of their goods which can be seized and later sold at a public auction to re-pay a debt to a creditor. The time of day which the sheriff attends can be selected and particular known items which the debtor owns, such a vehicle (noting that it must be unencumbered) can be seized.
Once filed, a Writ will stay active for execution by the sheriff for a period of 12 months.
In the circumstances where the sheriff is allowed into the property and finds goods that meet the value of the debt, the sheriff will provide the debtor with a “Notice to Custodian” (“notice“), which identifies the goods of value in the property. The only condition is that the debtor must have title to the goods before they can be seized.
If the debtor has failed to make an instalment application or repay the debt within 14 days of the sheriff issuing the notice, the sheriff will return to the property and seize the goods to be sold at a public auction. The proceeds of the sale are given to the creditor to cover the debt amount with any balance being returned to the debtor.
The creditor is responsible to pay fees for the removal of the goods which may include fees for the removal and storage of the goods. For instance, the removal of a motor vehicle may involve fees for a tow truck. There is also a further execution fee to be paid to the sheriff’s office for the second attendance to the property to seize the goods. These fees form part of the amount owed and are recouped from the funds of sale.
However, successful execution of Writs can be challenging for the following reasons:
- If the sheriff attends and the judgment debtor is not at home, a further fee needs to be paid to attempt a second execution;
- When the debtor is home during the sheriff’s visit to the property, the sheriff has limited powers with respect to entering the property. The sheriff cannot force entry to the property unless in some circumstances they have reason to believe there are goods of value in the property and the debtor has title to the property, as per section 135(2)(a) of the Civil Procedure Act 2005 (NSW). This also requires a motion to be filed and on the other hand can be quite advantageous where the debtor refuses entry to the sheriff’s officer;
- Finally, there are various restrictions in relation to the specific types of goods that can be seized. For instance, tools of trade can only be seized if the aggregate value of the tools exceeds $2,000.