Someone owes my business money – can I seize their property to recoup my losses?

All too often the media portrays businesses as evil entities that want nothing more than to turn a profit. Pinch a penny articles are a dime a dozen and consumers are encouraged, nay propelled, to assert their legal rights. That’s all well and good, but it doesn’t change the fact that businesses also fall victim to crooked customers and dishonest business associates. Bringing a cause of action before the courts is expensive, time consuming and exhausting. Even if you obtain a judgment in your favour, recovering your entitlements can be problematic to say the least. Questions such as; what avenues of debt recovery are open to me, and which option is best, will invariably arise at this point in time. In this article we shall discuss the writ for the levy of property.

A writ for the levy of property is a court order that allows a Sheriff to seize and sell property belonging to the judgment debtor. It is a debt recovery tool and can only be used once a judgment has been obtained. As such, it is a post-litigation step. It is possible for a judgment to be enforced by a writ for up to 12 years after the conclusion of court proceedings, however, in certain circumstances it may be necessary to obtain the leave of the court before the writ can be executed.

What property can be seized?

Under a writ for the levy of property the types of property that can be seized and sold for the purposes of recouping a debt are expansive. They include:

• any goods in which the judgment debtor holds an interest;
• money;
• cheques, bills of exchange, promissory notes, bonds and other securities;
• legal rights; and
• land.

Certain property cannot be seized, including:

• clothing;
• bedroom furniture;
• kitchen furniture;
• tools of trade not exceeding $2,000.00.

Key features of a writ for the levy of property

In deciding whether a writ for the levy of property is a suitable debt recovery tool in your particular circumstances, the following factors should be taken into account.

• A writ for the levy of property will not be able to be executed even if the judgment debtor does have sufficient assets to meet the debt, if they own the assets jointly with a spouse or partner.
• A writ for the levy of property is not an appropriate debt recovery mechanism if you do not know where the judgment debtor resides and/or you are unsure whether they have assets that can be seized to recoup the loss.
• When property is seized and sold under a writ for the levy of property, the proceedings are distributed in the following order; first, the sheriff’s fees and expenses are satisfied, then the debts of any creditors are met, and lastly the remainder of the proceeds, if any, is distributed to the judgment debtor (or you).
• All property seized under a writ for the levy of property must be sold by public auction to the highest bidder, however, if the auction bids are substantially less than the true market value of the assets, it may be possible to organize a sale by private treaty. This can be time consuming and bring about additional costs.

Conclusion

Do you have more questions about the writ for the levy of property or other debt recovery mechanisms open to you? Our dedicated and experienced team of LegalVision lawyers would be happy to assist you.