The Sheriff & seizure of goods
Dinh answered the door early on Sunday morning to two uniformed officers. They looked official but they were not police. They explained they were from the Sheriff’s Office of NSW and that they had come about a debt. Dinh started to panic. He had been hiding bills and other mail from his pregnant wife for sometime because they had no money to pay and she was getting worried about the bills. Now these uniformed officers were at his door talking about selling his things. Did he have to let them in? What if they took their furniture that was on loan from his wife’s uncle? How would he pay?
Why can the Sheriff seize my goods?
If a person or business you owe money to has got a court judgment against you, that person or business (then called the “judgment creditor”) has the option of getting an order from the court to seize your goods to pay the debt you owe. The order is called a Writ of Levy of Property and it is an order telling the Sheriff to take and sell some of your property to pay your debt. The Writ is also called Form 52 and can be found at www.lawlink.nsw.gov.au (follow the links to Local and court forms). The writ must be accompanied by an affidavit. The affidavit will say how much you owe and where the property to be taken is located. If you have made an Application to Pay by Instalments this will stop a Writ of Levy of Property if it is approved by the Court. See Fact Sheet: Making an Application to Pay by Instalments.
What happens when the Sheriff comes to my home?
- The Sheriff will explain that if you do not pay the amount owing your goods will be taken and sold at auction to pay the debt.
- You will be given a form called Notice of Motion for Writ of Levy for Property
- The first time the Sheriff visits s/he will not take any goods. The Sheriff will tell you when s/he will return to take the goods away.
- The Sheriff can “seize” property without taking it immediately. The Sheriff may attach a “Notice of Seizure” to any of your goods. If this happens the Sheriff will give you a “Notice to Custodian” listing the seized goods. You must not sell or give these goods away.
- Usually you will have a short time after the Sheriff’s first visit to get the money, negotiate with the judgment creditor or make an Application to Pay by Instalments.
- If you have plenty of property to cover the debt you can tell the Sheriff which goods to sell first.
- The Sheriff cannot use force to enter your house but can enter through an unlocked door. S/he may force entry to a shed or garage. You can refuse entry, but you must not assault or obstruct the Sheriff. If you do refuse entry to the Sheriff, it is likely s/he will return at a later date with the police and a warrant (Court order allowing the police to force entry).
- You will not be able to negotiate to pay by instalments or offer a smaller sum with the Sheriff. The Sheriff can only seize goods or accept payment of the debt in full.
- If a Writ of Levy of Property is given to you, you will also have to pay back any money the Sheriff’s Office has spent trying to recover the debt and any expenses of the judgment creditor. This is called ‘costs’. These costs will be added to the debt you owe to the judgment creditor.
What can I do?
- If you did not know about the court proceedings and the Sheriff is enforcing a default judgment (an order/decision made in your absence) you may be able to have it set aside. See Fact Sheet: Making an Application to Set Aside Judgment. You will need to also have a defence to the claim that you owe the money.
- If you do not have a valid defence to the debt, you can go to the court and apply to the court to pay the debt by instalments. The first Notice of Motion to pay by instalments will stop the Sheriff seizing your property until the Court has decided whether the application is accepted. For more information see Fact Sheet: Making an Application to Pay by Instalments.
- You can negotiate with the judgment creditor to pay the debt by instalments. If the judgment creditor agrees make sure this is confirmed in writing and the Court is told about the agreement.
- Pay the debt in full. You can pay this amount to the Sheriff’s Office or the Court and you will be given a receipt (check with the sheriff for exact details on where to pay as the Sheriff may be enforcing the debt in a different area to the Local Court where the judgment was made against you). You can pay the judgment creditor directly but make sure you get a receipt and inform the court you have paid.
What property can be taken by the Sheriff?
Property that the Sheriff can seize:
- Any goods where you, the judgment debtor have a beneficial interest
- Cheques, bonds, securities
- Land. However, a writ cannot be issued against land that you own where the amount that you owe under the judgment or the amount of your debt is less than $10,000. If, however, the amount that you owe is greater than $10,000 then a writ may be issued against your land.
- The Sheriff can seize jointly owned property and sell it. The money paid to the creditor will be the proportion of the sale price that belongs to the debtor. For example, if you own half of a car and it is sold for $3000 to repay a debt, then the judgment creditor will be given $1500 and the other $1500 will be paid to the other owner of the car.
- The Sheriff can take property such as money, furniture, TV, stereo, electrical appliances or a car.
The Sheriff however cannot take:
- Property that is rented, mortgaged, on hire purchase or belongs to someone other than the judgment debtor
- Clothing, bedroom or kitchen furniture
- Work or study tools, instruments or books up to the value of $2000.00
If the Sheriff does seize your goods, the Sheriff cannot sell your goods six days after the goods were seized. Your goods must usually be sold in a public auction.
What if the goods to be seized belong to someone else?
The Sheriff can only take property that belongs to the person against whom the court judgment was made (the “judgment debtor”). If the Sheriff’ tries to seize property that you don’t own, you should say that the goods are not your property. If possible show proof of ownership. The owner of the property must complete an Affidavit. See Sample Form: Affidavit at www.lawlink.nsw.gov.au (follow the links to Local Court and court forms) as a guide. An Affidavit is a legal form in which a person swears certain facts on oath before a Justice of the Peace or a solicitor. In the Affidavit, the person must swear on oath that s/he is the owner of the property. Evidence of ownership, for example, receipts should be attached whenever possible.
The owner of the property should lodge the Affidavit at the Court as soon as possible after the Writ of Levy of Property was handed to the debtor. The owner should also send a copy of the affidavit to the Sheriff’s Office (the location of the Sheriff’s Office is written at the top of the Writ of Levy of Property).
Need some more help? See Getting Help for a list of additional resources.
Last Updated 18/6/2013