If you have an order from the court that someone must pay you a sum of money, you need to enforce this judgment to receive the money. One way of doing this is by obtaining a court order that allows you to seize and sell property belonging to your debtor (i.e. the person who owes you money), known as a ‘writ for levy of property’. To get this kind of order from the court, you need to satisfy certain criteria and go through numerous steps. This article looks at the key features of a writ for levy of property in New South Wales (NSW) and when you may be able to use one.
What is a Writ for Levy of Property?
A ‘writ for levy of property’ (a writ) is an order that the court makes for a person who is owed money according to a court judgment. It enables you to seize and sell property that belongs to the debtor. The writ is valid for 12 months after the court issues it. If it expires before you have recovered the debt, you can apply for another writ. The writ covers all property that you can seize and sell to pay off a judgment. This includes:
- land (if the amount of the debt is over $10,000);
- securities; and
- any other assets in the debtor’s name.
However, if the debtor jointly owns any assets with another person or the assets are under finance, then the sheriff cannot seize and sell them.
How Do You Apply for a Writ for Levy of Property?
To apply for a writ against a debtor, you must:
- confirm the debtor’s address and other relevant personal details;
- establish that the debtor has assets. You can do this with a court ‘examination notice’ if the assets are not obvious or easy to discover. An examination notice is a form the debtor must fill out responding to questions about their income, assets and debts;
- prepare the following court forms:
- A notice of motion for the writ for levy of property. A notice of motion is an application to the court after a case has started, asking the court to do something;
- An affidavit (i.e. a statement of written evidence) in support of the notice of motion. In this affidavit, you need to state whether your debtor has paid any of the debt yet and provide details of any interest and additional costs associated with the enforcement. Finally, you need to note where the property of the judgment debtor is located (for example, in their factory warehouse at a specified address); and
- A writ for levy of property, which contains instructions to the sheriff of NSW, including the value of the debt, and the location of the property.
- file the completed forms with the same court where you obtained the judgment, along with payment of any court fees.
- allow the court to deal with the matter in chambers (in other words, you do not need to attend court). Once the court grants the writ, it will be sent to the sheriff’s office.
The ‘Office of the Sheriff of NSW’ is a government authority responsible for court security, administering the NSW jury system and specific law enforcement such as serving warrants and enforcing various court orders (such as a writ).
What Are the Fees?
There are no filing fees for the notice of motion. However, there is a fee that you need to pay to the sheriff’s office which increases on 1 July each year. You can find the current fee here.
The sheriff also charges a three per cent fee on the money gained from auctioning the property and any other expenses involved in seizing the property. If you have engaged a solicitor to assist in the preparation of the court forms, then there will also be some legal fees involved.
What Happens Once the Writ Has Been Issued?
Seizure of Property
Once the court issues the writ and it has been sent to the sheriff’s office, the sheriff will approach the debtor and inform them that a writ has been issued for the levy of their property. The sheriff will not immediately seize the property and it is likely that a minimum of four weeks will pass before the sheriff takes further action. This is because the sheriff must give notice and the debtor needs to have an opportunity to pay the debt before the sheriff takes the property.
If the debtor does not take any action, then the sheriff will proceed to seize the property. In reality, this is when the sheriff returns to the judgment debtor’s property and places a notice on any item that the sheriff will sell. After a further period of time has passed (likely another four or more weeks), the sheriff will return to collect the property for sale.
Sale of Property
Once the sheriff has collected the property, they will hold an auction to sell the property. The proceeds of the sale will go towards the money that the debtor owes you as well as the sheriff’s fees.
As is evident from the above, it can be months before a writ for levy of property is finally executed (i.e. carried out), and the judgment debt satisfied.
What If There is Not Enough Personal Property to Satisfy the Judgment Debt?
In these circumstances, where there is not enough personal property to satisfy the debt that they owe you and the debt is over $10,000, you can apply for an order seeking the sale of real property (land). This is a writ against land.
In NSW, land cannot be sold under a writ for levy of property until:
- you have registered the writ with Land Registry Services NSW (LRS NSW);
- you have filed a Creditor’s Notice with a supporting affidavit;
- a Creditor’s Notice has been served (i.e. delivered) on the debtor;
- you have prepared an affidavit of service (i.e. a written statement confirming that you have delivered the Creditor’s Notice properly);
- a Notice of Sale form (a form that LRS NSW requires) has been completed and six copies filed with LRS NSW; and
- you provide all copies of the notices of sale to the sheriff’s office.
The sale of the land will not occur for at least a further four weeks, and there are other requirements that you need to satisfy (such as advertising the sale and valuation) before the date of auction.
If you’re trying to recover money that someone owes you according to a court judgment using a writ for levy of property, the process may take longer than you expect. It is not just a matter of handing your writ to the sheriff’s office and the sheriff selling the debtor’s property at auction a couple of weeks later. Furthermore, sale of real property (i.e. land) is only an option if the debt is over $10,000, in addition to several other conditions. Using a writ for levy of property may not be the best option for you. It will depend on the size of the debt and the types of assets that the debtor possesses. If you have any questions, you can contact LegalVision’s litigation lawyers on 1300 544 755 or fill out the form on this page.
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