A judgment creditor has several available means of enforcing a debt against a judgment debtor. One such method is by obtaining a warrant in either the Magistrates’ Court, the County Court or the Supreme Court. A warrant when issued, authorises the sheriff to act on behalf of the creditor to satisfy the debt owed by the debtor. This is primarily achieved through the acquisition and subsequent sale of the debtor’s property.
The creditor is entitled to issue a warrant in the Magistrates’ Court pursuant to Order 68 of the Magistrates’ Court General Civil Procedure Rules 2010. In the Magistrates’ court, there are two types of warrants. The first type is a Warrant to Seize Property per r 69 of the abovementioned Act. When this warrant is issued, the sheriff can acquire the personal property of the judgment debtor which includes amongst other things, money, bonds, and securities. Essentially, r 69 authorises the sheriff to seize and sell personal property, cash and negotiable instruments of the debtor to satisfy the judgment debt. A negotiable instrument is a document which guarantees the payment of a sum of money by the payer usually at a specified time, or by demand. The rule does not mention real estate as an asset which can be seized and sold by the sheriff.
The second form of warrant which can be issued by the Magistrates’ Court is called a Warrant of Delivery per r 68.12. This type of warrant is used for the recovery of goods and authorises the sheriff to seize specific goods and deliver them to the person so ordered.
Rule 68.05 provides that a warrant will remain enforceable for one year from its date of issue. The registrar is empowered by the rules to extend the period of validity for a further year should an application to extend the warrant be made. It is essential that the application be made during the life of the warrant, otherwise an extension cannot be granted.
The warrant must be delivered to the sheriff’s office accompanied by the Court fee, inclusive of the fees for execution of the warrant and attempted execution. Professional costs accumulated in preparing the warrant are also included. Penalty interest is calculated by the creditor which must be set out to establish the rate of daily interest accumulation which is claimable by the sheriff when executing a warrant.
Rule 68.06 confirms that the amount which can be recovered by the sheriff includes the costs of fees and costs of any unsuccessful previously attempted executions of the order.
Certain items cannot be acquired and sold by the sheriff. The items which cannot be seized include tools of trade up to the value of $3150, motor vehicles worth less than $6,300 and certain household property as per s 116(2)(b)(c) and (ca) of the Bankruptcy Act 1966 (Cth). Section 116 of the Bankruptcy Act 1966 (Cth) is applied to regulate the seizure of items by the sheriff pursuant to a warrant, per s 42 of the Supreme Court Act 1986.
In addition to the warrants which can be issued in the Magistrates’ Court, a judgment creditor can seek to obtain a warrant in the County Court or the Supreme Court. Warrants issued in the County Court or the Supreme Courts come in three forms. The first form of the warrant is known as a Warrant of Seizure and Sale – Goods and Land. This form is the primary means of enforcement of a judgment debt. A Warrant of Seizure and Sale authorises the sheriff to seize and sell the real estate of the debtor and money pursuant to order 69 of the County Court Civil Procedure Rules 2018. This form of warrant must be accompanied by an affidavit. If the judgment creditor wishes to obtain Warrant of Seizure and sale I neither the County or Supreme Courts, but the judgment was issued in the Magistrates’ Court, it is a requirement that the judgment creditor must initially demonstrate that the Magistrates’ Court warrant was unsuccessful, per s 112(1) of the Magistrates’ Court Act 1989. An application must then be made to the Registrar to grant the judgment creditor a certificate for the Supreme Court. The land which is sought to be seized and sold, will then be bound by the judgment when notice of the warrant has been provided to the Registrar of Titles per s 52(2) of the Transfer of Land Act 1958.
The second form of warrant which can be obtained in the County or Supreme Court is called a Warrant of Possession. This form of warrant entitles the plaintiff to recover possession of their land pursuant to order 70 of the County Court Civil Procedure Rules 2018. This form of warrant is obtained primarily in property disputes where a landlord is seeking to evict a tenant. This variety of warrant is not a method of debt enforcement and exceeds the scope of this article.
The third form of warrant which can be obtained in the County or Supreme Court is known as a Warrant of Delivery. Here, the successful plaintiff will have obtained a judgment requiring the defendant to deliver specific goods or pay the value of the specific goods to the plaintiff pursuant to order 66 of the County Court Civil Procedure Rules 2018. This form of warrant is obtained to enforce the judgment, whereby the sheriff will seize the specific personal property and deliver it to the successful plaintiff or will attempt to recover the assessed value of the goods.
This article is intended only to provide a summary of the subject matter covered. It does not purport to be comprehensive or to render legal advice. No reader should act on the basis of any matter contained in this article without first obtaining specific professional advice.
For any further information concerning this article, please contact Mr Max Van de Garde of our office.
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