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A writ for the levy of property is a court order that directs the sheriff to take and sell some of your personal property. The money raised from the sale pays the judgment debt plus the costs paid by the other party to have the writ issued and carried out.
The court will send a copy of the writ to the nearest sheriff's office and soon after a sheriff will come to your house.
For some people, the first time they find out there is a court claim against them is when the sheriff comes to their home. If you have never received any court papers before, or you don't know why the sheriff has come to enforce a judgment debt, you should call the courts call centre on 1300 679 272 to get a copy of the statement of claim.
If you don't agree that you owe the judgment debt, you can apply to have the judgment set aside. For more information, see Setting aside a default judgment.
If you agree that you owe the money you can pay the debt in full or you can apply to pay the judgment debt by instalments to stop the enforcement. For more information, see Paying the judgment.
The sheriff will make a list of items and tag them. The sheriff should give you a notice, which includes the list of items seized. The sheriff usually doesn't take these tagged items straight away so you have a chance to do something to stop the sale of your items. However, the sheriff is now the lawful owner of the tagged goods. It is a criminal offence to get rid of them or damage them.
If you do nothing about the judgment debt, the sheriff will return and remove the tagged property to sell it. The sheriff will hold an auction to sell the tagged property and must take steps to make sure they get a fair price for the items they are selling.
After the auction, the amount made in the sale will be paid towards the judgment debt and the sheriff's costs. If the amount made doesn't cover both, the sheriff will come back to your home and seize more items to sell until you have paid back the full amount owed. If there is any money left after the sale of your property, this money must be returned to you.
If you want to get legal advice, you should let the sheriff know. They may delay taking immediate action if they know you intend to get legal advice.
The sheriff may take your personal property except essential household items and other items that are protected by bankruptcy laws. For example, the sheriff cannot take:
The sheriff also cannot take tools you need to earn an income and motor vehicles you need for transport unless it is above the limit set by bankruptcy laws. This limit is called the 'indexed amount'. The indexed amount changes every financial year and it is currently (as at 29 January 2020):
The indexed amount for motor vehicles is not the total value of the vehicles. The amount is the total value of the vehicles minus the sum that you owe under finance.
For more information, see Indexed amounts on the Australian Financial Security Authority website.
In the Small Claims Division of the local court, a judgment creditor can only apply for a writ for the levy of property against personal property and not land.
When the sheriff tags property, they will give you a notice to the custodian, which is a list of all the tagged items.
If the sheriff tags items that don't belong to you, tell the sheriff that they are not your property. The owner of the item needs to take action as soon as possible and should get legal advice.
Even if someone other than you owns the tagged items, they can't take the items from your home. Moving, taking or selling tagged items can result in a criminal conviction and a fine of up to $5,500.
To try and stop your property being taken and sold you can:
Apply to the court for a stay of enforcement
If you need some time to borrow money or sell property to pay the judgment debt, you can apply to the court for a temporary order stopping the sheriff taking your property. This is called applying for a stay of enforcement, or a stay of proceedings.
For more information see Stay of enforcement.
Pay the judgment debt
You can pay the debt by giving the sheriff or the other party the amount of the writ in full including any court costs or fees. For more information, see Paying the judgment.
If you cannot pay this amount in full, you could try to come to an arrangement with the other party as to how it will be paid.
For more information see, Negotiating after the judgment.
Apply to the court to pay by instalments
The first time you apply to the court to pay the judgment debt by instalments, all enforcement action, including selling your property under a writ for levy of property, will automatically stop.
If you are making a second or later application to pay by instalments, you will also need to apply for a stay of enforcement to stop the sheriff from selling your property.
For more information, see Paying in instalments.
Apply to the court to set aside default judgment
If you did not file a defence and the other party got a default judgment against you, you can apply to the court to set aside the default judgment. In your application, you will need to explain to the court:
what your defence is to the claim.
For more information, see Setting aside a default judgment.
You will notice that the amount owed will keep increasing depending on how far the sheriff has gone to try to sell your personal property.
When the sheriff first seizes your property, you will usually owe:
If the sheriff removes the tagged items from your home and starts preparing for the auction, the amount you owe will increase to cover the sheriff's costs for doing these things.