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You need a judgment from the court before you can apply for writ for the levy of property.
A writ for the levy of property is an order to a sheriff to 'seize' (take) and sell, at auction, property belonging to the other party. The money from the sale of the goods is used to pay the judgment debt owed to you. You can only apply for a writ for the levy of property against personal property (not land) in the Small Claims Division.
A writ for the levy of property can be used for 12 months. If the writ expires and you still haven't recovered all of your money, you can apply for another writ.
To apply for a writ for the levy of property, follow the steps in the guide on this page.
You will need two forms:
You can file Form 65 on the NSW Online Registry . You do not have to file Form 66 if you are applying online.
You can get copies of the forms from:
The notice of motion has an affidavit attached.
You can fill out your form:
To fill in the notice of motion form you will need to have the following information ready:
When you have finished filling out the form you need to swear or affirm it in front of an approved witness such as a solicitor, barrister or justice of the peace.
Take or send both forms to the court where the statement of claim was filed. You should file the original and two copies, one copy for you and one copy for the sheriff.
There is no filing fee but you need to pay the court the sheriff's execution fee of $89.00 (as at 1 July 2020).
The sheriff also charges a levy which is 3% of the money made from auctioning the seized goods. The sheriff may also add amounts for other expenses like towing a car that has been seized. These amounts are added to the judgment debt.
The court will issue the writ without you or the other party attending court. The court will send the writ to the sheriff's office nearest to the other party's address. The sheriff will contact you directly regarding the payment of any further fees or if they have any problems. You do not have to provide the other party with a copy of the writ.
The sheriff may contact the other party or go to their home to let them know about the writ. The sheriff may give the other party some time (for example, one week) to get some
legal advice about the writ.
If the other party does not take any action to stop enforcement, the sheriff will return and make a list of items and place a tag on them. This is called 'seizing'. The sheriff usually doesn't take these tagged items straight away so the other party will still have a chance to do something to stop the sale of their items. It is a criminal offence for anyone to get rid of or damage the goods.
The sheriff will return and remove the tagged property to sell it.
It can be a shock to the other party when the sheriff comes to their home. The other party could:
If you have a default judgment, it is possible that the other party did not receive the statement of claim. They might not know about the judgment until the sheriff arrives. The other party may make an urgent application to the court to set aside the judgment.
For more information, see
Responding to an application to set aside default judgment.
After the sheriff contacts the other party, the other party may apply to the court to pay the debt by instalments. The first application to pay by instalments will act as a stay of enforcement. This puts all enforcement action, including the writ for the levy of property, on hold until the court makes a decision about the application to pay by instalments. Second and later instalment applications do not automatically stay enforcement.
You will be notified by the court if it accepts the other party's instalment application. If you disagree with the order you can file an objection within 14 days of being notified.
For more information on how to object to an instalment application, see
Being paid in instalments.
If the court makes an instalment order, you cannot enforce the debt as long as the other party keeps paying the instalments.
The other party may disagree with the outstanding amount of the judgment debt in the writ. If you and the sheriff don't change the amount claimed, the other party can ask the court for an urgent 'ex parte' order for a stay of enforcement. This is a temporary order that stops you from enforcing the judgment. This order can be made without you being notified or being at court.
You will later get a chance to explain in court why the amount in the writ is correct. If this happens, you should get
For more information, see
Stay of enforcement.
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 the judgment debt and the sheriff's costs, the sheriff will go back to the other party's home and seize more items for sale until the full amount is paid.
If there are no more goods to sell, you should consider taking other enforcement action. For more information, see