Civil Operations
Changes to fees for Service and Execution
Schedule 2, Civil Procedure Regulation 2005, outlines the fees that must be paid when the Sheriff is required to Serve or Execute court process. These fees are applicable “for each address at which, and each occassion on which, service or execution is effected or attempted”. On the 1st July 2006, this Regulation was amended to read “for each address at which and on each occasion on which, service/execution is effected or attempted”. This is now being implemented.
An Information Sheet is given to creditors/plaintiffs for them to provide any information that may assist us to finalise the process at the first attempt.
Our scale of fees
Examination Order
Garnishee Order
Writ for Levy of Property
What if the goods belong to someone else?
Can the Defaulter make an agreement with the Sheriff’s officer?
Writ for Levy of Property Options:
1. PAY
2. PAY BY INSTALMENTS
3. DO NOTHING
The New South Wales Sheriff’s Office serves and enforces documents issued from courts in NSW and Australia. Generally the majority of documents and orders issued are done so inaccordance with the Civil Procedures Act 2005 and are against a person or business (called the Debtor) that owe money to another person or business (called the Creditor). These documents include
- Examination Summons
- Garnishee Orders
- Statement of Claim
- Warrant of Apprehension
- Warrant of Possession - issued from Residential Tribunal
- Writ for Specific Delivery
- Writ for Levy of Property
- Writ of Possession.
Examination summons
An Examination Summons requires the Defaulter to attend the Court House at a certain date and time, to be examined in relation to their financial circumstances. They are required to provide financial details such as income, expenditure, assets and liabilities.
If the Defaulter fails to attend the Court House at the appointed time and date mentioned in the Examination Summons, then a Warrant of Apprehension may be issued authorising a Sheriff’s officer to apprehend the defaulter and bring the Defaulter before the Court to be examined.
Garnishee Order
A Garnishee order is a document that is served on the Debtors employer or bank (you will need certain bank account details for service on a bank). A Garnishee order requires:
- the employer to deduct funds from the Debtors wages, or
- the bank to deduct funds from the Debtors account,
and forward these amounts to the court the order was issued from.
Writ for Levy of Property
A Writ for Levy of Property is a Court order that directs the Sheriff or his officers, to seize and sell the Debtors goods, chattels (personal assets) and real property (land & house if the debtor is over $10,000).
The amount owing on the Writ for Levy of Property will be different from the amount shown on the initiating summons due to additional Court costs incurred and an execution fee. These costs form part of the debt.
The usual procedure in enforcing a Writ for Levy of Property is for the Sheriff’s officer to attend the Debtors address or any other place in NSW where the Debtors goods may be found. A demand is made on the Debtor, or some other person in charge of the goods, to pay the debt plus the Sheriff’s 3% levy. If the debt is paid the matter is finalised.
If the debt is not paid the Sheriff’s officer will usually make an inventory of the Debtors goods, which is called a "seizure”. Once the inventory is completed the Sheriff’s officer will appoint a person as custodian of the goods, and this person is to ensure that the goods are not removed from the location which they were seized, interfered with or disposed of them. However the Sheriff’s officer also has the option to remove goods immediately. This does not happen often, but can happen if the Debtor is moving from the address, or the Sheriff’s officer believes there is a risk that the goods will be removed.
Once goods are seized they cannot be removed, interfered with or disposed of without the authority of the Sheriff’s officer in writing. If goods are removed, then the custodian of the goods may be charged with the unauthorised removal of goods and liable to a fine. Once the goods have been seized, additional costs will be incurred for the removal, advertising, sale, and in some instances for tow truck (where vehicles are seized) and locksmiths expenses. These costs form part of the debt and are to be paid when the debt is paid or from the proceeds of the sale of these goods.
What if the goods belong to someone else?
There may be occasions where a Sheriff’s officer has listed on the inventory goods that may belong to someone else. The reason for this is at the time of seizure no formal proof of ownership was shown to the Sheriff’s officer to indicate that it was the property of another person. Therefore these goods are listed on the inventory.
If the Sheriff’s officer includes any goods on the list that belong to another person, the legal owner of the goods must complete an Affidavit (available from your Local Court), detailing their ownership along with any proof of that ownership, and forward this to the Sheriff’s officer who made the seizure. An Affidavit is a legal document in which a person swears certain facts on oath before a Justice of the Peace. When this is received the Sheriff’s officer is required to forward this advice to the Creditor, seeking instructions on whether they accept or reject the claim.
If the Creditor advises the Sheriff’s officer to release the goods, the Sheriff’s officer will release those goods from seizure and will proceed with the sale of any other seized goods. If the proceeds from the sale do not fully satisfy the debt, further seizure attempts may be made.
If the Creditor advises the Sheriff’s officer to proceed to sale, the Sheriff’s officer will then apply to the Court, via an Interpleader Order, to seek the Courts instructions regarding the ownership of the goods. The Court will call the parties together and then make a decision to release or sell the goods. This decision is then forwarded to the Sheriff’s Office for action.
Can the Debtor make an agreement with the Sheriff’s officer?
No. A Writ for Levy of Property is a court order made by the court upon the Creditor's request, and authorises a Sheriff’s officer to seize a Debtors goods. Once a matter has reached this stage, the Sheriff’s Office can only take directions from the Court that issued the order, the Creditor or their Agent. Those instuctions must be in writing. The Sheriff’s officer cannot take directions from the Debtor or their representative, or make any special agreement with the Debtor about the debt.
The Debtor may still make an arrangement with the Creditor (or their agent) to repay the debt and also has the opportunity to make an application to pay by instalments with the court that issued the order. However, if the debtor makes an arrangement direct with the Creditor (or their agent) it is the Debtors responsibility to ensure that the Creditor makes this known to the Sheriff’s officer. Remember the Sheriff’s Office cannot take instructions from the Debtor or their representative.
If a Writ for Levy of Property is issued and you are named as the Debtor, you have three options.
1. PAY
Pay the money you owe plus any interest and additional costs. The sooner you pay the money you owe, the less costs you will pay. If you pay the Sheriff’s Office the money straight away, this will be recorded on your file and you will be given a receipt.
You can also pay the money you owe directly to the Creditor, however, you will need to ensure that the Creditor notifies the Sheriff's office of your payment. If you fail to pay the whole amount to the Creditor, the Sheriff's Office may still proceed with the order until the balance is paid, should they be instructed to do so by the Creditor. If you do pay the Creditor, you must make sure you get a receipt. You should not wait too long to pay your debt because you may incur further costs.
2. PAY BY INSTALMENTS
Make an arrangement with the Creditor, the Creditor's Agent or apply through the court of issue to pay by instalments.
If you cannot afford to pay off your debt straight away, you can ask the Creditor if you can repay the debt by instalments. If they agree, make sure they contact the Sheriff’s Office to advise us of the arrangement.
Always keep a record of your payments (date paid, cheque or money order number), in case there is a dispute.
3. DO NOTHING
If you do nothing then your goods will be removed and sold in an attempt to satisfy the debt. If the sale of the goods does not fully satisfy the debt, the process will be repeated until the debt is paid.
It is in your interest that you make suitable arrangements to pay, or repay the debt. There are a number of options available to you, and you should discuss these with you solicitor, or with your local Court House staff.
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