Debt Recovery: Part 3 – Warrants

Part 3- of debt recovery series:

Using Warrants to Sell Goods & Land

This is the most commonly used enforcement procedure and is generally used by a judgement creditor when they believe you own personal property, which can be seized to pay the judgement debt.

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The Sheriff is directed/ordered by the warrant to attend at a Victorian premise(s) where the debtor has assets.

If payment of the judgement debt is not made, the Sheriff can seize assets belonging  to the debtor sufficient to satisfy the debt form your home or business.

What can the Sheriff seize?

  • Must be non-secured items.
  • Must not be protected goods.
  • Must be owned outright, i.e. your car but only if it is worth more than $7,200 (currently).
  • Cannot be items that are key to assist you to live comfortably, such as personal property, refrigerator, TV, washing machine, kitchen equipment, some furniture, personal jewellery and clothing.
  • Cannot be items used in earning income by physical exertion, such as tools, but only up to a value of $3,550 (currently)

 What can the Sheriff do?

  • The Sheriff has the power to enter your home or business using reasonable force, if they believe on reasonable grounds that there is or may be in the house personal property of the judgement debtor, which can be seized and if you are unable to be located/contacted or if you unreasonable withhold consent allowing the Sheriff access to the property.
  • If entering a residential property this must be done between 9 am – 5 pm.
  • The Sheriff also has the power to legally break into garages and other buildings not attached to the residence.
  • The Sheriff can take goods or simply make a list of what is seized, known as a Walking Possession Notice.

 What can you do?

  • You cannot throw the Sheriff out of the property once the Sheriff is inside.
  • If the Sheriff makes a list of what is seized then you cannot sell or dispose of the goods.
  • After the goods are seized the Sheriff will attempt to sell them. It is still possible at this time to negotiate with the judgement creditor to stop the Sheriff selling the goods or arrange an alternative method to pay the debt, such an instalment order.
  • However, if you are unable to negotiate a settlement with the judgement creditor, the Sheriff will sell the goods. This can be done either privately or by public auction.

 What happens after the goods are sold?

  • The Sheriff takes out its costs. These costs include removal of the goods, storage of the goods, costs associated with entry to property, such as locksmith’s fees and auction fees from any sale proceeds.
  • The Sheriff then pays the judgement creditor.
  • Whatever is left over (if anything) goes to the judgement debtor.

What happens if the seized property does not pay off the full judgement?

  • You still owe the balance of the debt to the judgement creditor!
  • The person you owe money to can use other enforcement methods eg: garnish wages or sale of land

Can the Sheriff sell my land?

The Sheriff also can seize land/property and sell, that is:

i.           The Sheriff can sell any real estate you have a financial interest in – if you are aware of this type warrant – seek urgent legal advice.

ii.           Real Estate includes houses, apartments, land, holiday homes and farms.

iii.           Land includes all forms of real estate.

iv.           This type of warrant must be ordered by the Supreme or County Courts of Victoria.

v.           The land is sold by auction and normal auction rules are followed, i.e. a reserve price must be set based on a valuation.

vi.           After the sale the Sheriff will pay out any loans/mortgages, council and water rates, expenses/costs associated with the sale.

vii.           After the costs have been paid the judgement creditor is paid and which usually includes the legal costs.

viii.           Any money left will be paid to the judgement debtor.

ix.           If the land does not sell for the reserve price, the judgement creditor can obtain an order from the Court to sell at a fair price or the Court can set aside the sale as per the case of Zhou v Kousal [2012] VSC 187.

x.           Warrants to sell land are valid for 3 months & must be registered with the Land Registry.

 What if I jointly own land?

  • The Sheriff can only sell your interest in the land.
  • The value of your share is reduced by any mortgage or rates you owe.
  • The buyer of your interest in the land has all the normal rights and responsibilities of a land owner. These include rights of entry and occupation.

 

Can you stop the sale?

  • Yes.
  • At any time prior to the sale you can apply to the original Court where the judgement was obtained for an instalment order.
  • Immediately inform the Sheriff if you obtain an instalment order to stop the sale!

 

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