Fine Operations
The New South Wales Sheriff’s Office serves and enforces documents issued by the State Debt Recovery Office under the Fines Act 1996 against the person who owes the fine (called the Defaulter).
These documents include:
Examination Order
Garnishee Order
A Property Seizure Order
Community Service Orders
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 explain the reason for their non attendance and also be examined.
Garnishee Order
A Garnishee order is a document that is served on the Defaulters employer or bank and requires:
- the employer to deduct funds from the Debtors wages, or
- the bank to deduct funds from the Debtors account,
and forward those funds to the State Debt Recovery Office,A Property Seizure Order
A Property Seizure Order is a Court order (similar to a Writ for the Levy of Property) that directs the Sheriff or his officers:
- to seize, remove and sell the Defaulters goods and chattels (personal assets).
The amount owing on the Property Seizure Order will be different from the amount shown on an enforcement notice due to additional Court costs incurred and an execution fee. These costs form part of the debt.
The usual procedure in enforcing a Property Seizure Order is for the Sheriff’s officer to attend the Defaulters address, or place where the Defaulters goods may be found. A demand is made on the Defaulter, 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 take an inventory of the Defaulters goods. This 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, interfered with or disposed of. However the Sheriff’s officer also has the option to remove goods immediately. This does not happen often, but can happen if the Defaulter is removing goods 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. 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 (vehicles) 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 inventory that belong to another person, the legal owner of the goods must complete a Notice to Sheriff of Disputed Property along with an Affidavit in suppport of the claim (available from your Local Court), detailing their ownership and providing any proof, 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 State Debt Recovery Office, seeking instructions on whether to release the goods or to proceed.
If the State Debt Recovery Office advises the Sheriff’s officer to release the goods, the Sheriff’s officer will release these 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 will be made.
If the State Debt Recovery Office 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 Defaulter make an agreement with the Sheriff’s officer?
No. A Property Seizure Order is taken out by the State Debt Recovery Office, and authorises a Sheriff’s officer to seize a Defaulters goods. Once a matter has reached this stage, the Sheriff’s Office can only take directions from the State Debt Recovery Office. The Sheriff’s officer cannot take directions from the Defaulter or their representative, or make any special agreement with the Defaulter about the debt.
The Defaulter may still make an arrangement with the State Debt Recovery Office to repay the debt, but it is the Defaulters responsibility to ensure that the State Debt Recovery Office makes this known to the Sheriff’s officer. Remember the Sheriff’s Office cannot take instructions from the Defaulter or their representative.
If you get a Property Seizure Order, you have three options.
1. PAY
Pay the money you owe plus any 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 State Debt Recovery Office, however, you will need to check with the Sheriff's office to ensure that there are no outstanding fees due to them. If you do this, you must make sure to get a receipt. You should also make sure that the State Debt Recovery Office notifies the Sheriff’s Office that the debt has been paid. 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 State Debt Recovery Office
If you cannot afford to pay off your debt straight away, you can ask the State Debt Recovery Office 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 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.
What is a Community Service Order (CSO)?
An order:
- issued by the State Debt Recovery Office if the defaulter has no goods to seize, is unemployed or has no means to repay the debt
- requiring the defaulter to undergo community service work.
What is Community Service Work?
- work performed at a non profit community agency:
- organised by the Probation & Parole Service with local agencies such as St Vincent De Pauls, local councils, etc
- can be skilled work such as carpentry, plumbing, electrical
- can be unskilled work such as gardening, general maintenance, etc.
Community service work may be performed:
- if available, at home
- at an agency
- individually
- as a team
- on a weekend
- on a weekday.
Fine defaulters can work:
- up to 8 hours per day
- up to a maximum of 21 hours per week
- may be able to work less than 8 hours per day (with approval from the Probation & Parole Service).
Probation & Parole prefer the fine defaulter to work in blocks of 8 hours rather than 1 hour per day for 7 days:
- the CSO will show the number of hours the fine defaulter has to serve
- the CSO will not exceed 300 hours
- the fine defaulter may have more than one CSO.
The fine defaulter is required to:
- make sufficient time available to complete the CSO hours
- perform the work allocated in a satisfactory manner
- comply with all reasonable directions in completing the work
- own their own transport or make their own travel arrangements
- notify the P&P Service if they are experiencing any difficulties
- notify the P&P Service of any change of address.
If the fine defaulter:
- fails to report to the P&P Service within 14 days, or
- fails to comply with a CSO
the penalty is IMPRISONMENT |
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