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A writ for levy of property is one of a number of enforcement actions commonly used to recover a judgment debt in New South Wales. Deciding what enforcement action you wish to take can be difficult. This article will outline the pros and cons of issuing a writ for the levy of property, and what you need to do to get one.  

What is a Writ for Levy of Property? 

A writ for the levy of property (also known as a writ of execution against goods) is an order made by the court. It allows the NSW sheriff to seize and sell property owned by your debtor to pay the debt owed to you. A debtor’s goods will become legally bound to the sheriff from the time the sheriff receives the writ.

What Property Can Be Seized?

Not all property can be seized. Items that the sheriff can seize include:

  • any goods or personal property where the debtor has a beneficial interest;
  • money, cheques, bonds and securities;
  • land, provided the judgment debt is more than $10,000 (a writ of execution for land also requires a number of additional steps to be taken).

Items that are protected by bankruptcy laws and cannot be seized include: 

  • kitchen items (e.g. heating and cutlery);
  • toiletries;
  • large furniture and beds;
  • children or student’s educational and sports items;
  • at least one television set, stereo equipment, radio, video recorder;
  • washing machine and clothes driers;
  • refrigerator and freezers;
  • safety equipment like fire detectors and extinguishers;
  • tools of trade required by the debtor to earn an income; and 
  • motor vehicles required for transport (unless the value exceeds $8,100).

The Pros

The pros to a writ for levy of property include:

  • there is no court filing fee payable upon application for a writ for the levy of property. This makes issuing a writ a relatively inexpensive enforcement option;
  • having a sheriff turn up at the door can be an intimidating experience for your debtor. In many instances, it can prompt your debtor to make payment or reach out to negotiate a payment arrangement with you; and
  • if your judgment debt is relatively small, a writ for levy of property can be a relatively easy way to receive payment.

The Cons

The cons to a writ for levy of property include:

  • there is no way to find out what assets your debtor owns prior to issuing a writ, unless you have first-hand knowledge about your debtor’s assets;  
  • the process for executing the writ can be relatively slow, dependent on the sheriff’s workload;
  • it may be difficult to seize sufficient assets to satisfy a large judgment debt, unless your debtor has significant assets; and
  • if you cannot satisfy the judgment debt, you may require alternate enforcement action. 

What is the Process?

You must have a judgment entered against your debtor before you can proceed with issuing a writ for the levy of property. 

Once you have a court judgment, an application is made to the court, via a notice of motion writ for levy of property, together with an affidavit in support.

The motion and affidavit must set out the: 

  • details of your court proceedings;
  • debtor’s name, address and telephone number;
  • total amount, if any, paid by your debtor in reduction of the judgment debt;
  • interest amount on the judgment debt since the judgment date; 
  • enforcement costs you are claiming; and
  • best times the sheriff is likely to find your debtor at home (if known).

It must also include a list of:

  • any known items of value owned by your debtor; and 
  • anything dangerous at your debtor’s home (if known). 

Once the motion and affidavit have been signed, the documents must be filed with the court. There is no court filing fee, but you will be required to pay the sheriff’s execution fee (currently $89.00).

The court will consider your application, and if accepted, will issue the writ. The court does not require you to appear at court. Next, the court will send the writ to the sheriff’s office closest to your debtor’s address. The sheriff will contact you directly regarding the payment of any further fees or if they have any problems.

What Does the Sheriff Do?

Once the sheriff is in receipt of the writ the court issues, they may contact your debtor or attend at their home to let them know about the writ. Suppose your debtor does not take any action to stop the execution of the writ. Then the sheriff will come back to make a list of seizable items and place tags on them. The sheriff won’t usually take these tagged items immediately, allowing your debtor one final opportunity to take action to stop the sale of their property.

It is a criminal offence for your debtor to dispose of or damage any of the tagged property.

The sheriff will return at a later date to remove the tagged property to sell it. The sheriff will hold a public auction to sell the seized property. They are must take reasonable steps to ensure the items they are selling get a fair price. The amount made in the sale at the auction will be go towards the judgment debt and the sheriff’s costs.

If the amount recovered is not sufficient to cover the judgment debt and the sheriff’s costs, the sheriff can re-attend at your debtor’s property and seize additional items until they can pay the full judgment debt. A writ for the levy of property will remain valid for 12 months. 

If the sheriff determines that your debtor does not have any seizable property, you will be advised in writing. 

Key Takeaways 

Like all enforcement options, there are both pros and cons to issuing a writ for the levy of property. Careful consideration should be given to determine if a writ for levy of property is likely to result in you receiving payment before proceeding. For advice regarding getting a writ for levy of property, contact LegalVision’s debt recovery lawyers on 1300 544 755 or fill out the form on this page.

Frequently Asked Questions

What is a writ for levy of property?

It is an order made by the court that can also be known as a writ of execution against goods. It permits the NSW sheriff to seize and sell you debtor’s property to pay the debt owed to you.

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