The Law Handbook 2024

Chapter 5.2: Are you in debt? 359 there is the personal property of the person named/ described on the warrant. That is, property that may be lawfully seized under the warrant. The sheriff’s officer is required to ask you for consent to enter the house. The sheriff’s officer may use force to enter your property if you unreasonably withhold your consent (s 22 Sheriff Act 2009 (Vic)). Any officer in breach of section 22 of the Sheriff Act 2009 (Vic) may be liable to pay you the sum of $400 plus damages for resultant loss suffered (s 123(1)(e) Supreme Court Act 1986 (Vic) (‘ SC Act ’)). Of course, if you have no money, or only have protected goods (see below), the sheriff can do nothing, so letting a sheriff’s officer in may not leave you worse off. Seek advice from a financial counsellor (see Chapter 5.4: Financial counselling services) or Consumer Affairs Victoria, if you are not sure what to do when a sheriff’s officer comes to your house. Despite the requirement for the sheriff’s officer to ask you for consent to enter the house, the officer may use force and assistance to enter if: 1 the sheriff’s officer, after reasonable attempts to do so, cannot contact you; or 2 the sheriff’s officer reasonably believes that you are avoiding being contacted by the sheriff (s 22(4A) Sheriff Act 2009 (Vic)). The sheriff cannot seize any property that could not be taken from a bankrupt (s 42(1) SC Act). The protected goods the sheriff cannot seize are: • property used by you primarily as a means of transport (e.g. a registered car) up to the value of $9100 (as at 1 October 2023; indexed annually). This amount refers to the equity in the vehicle (i.e. the value of the vehicle less the sum owing under finance) (s 116(2)(ca) Bankruptcy Act; reg 30 Bankruptcy Regulations 2021 (Cth) (‘ Bankruptcy Regulations ’)); • property used by you in earning income by physical exertion (e.g. tools of trade) up to a total value of $4200 (as at 1 October 2023; indexed annually) (s 116(2)(c) Bankruptcy Act; reg 29 Bankruptcy Regulations; • certain awards that may have been awarded to you personally (reg 28 Bankruptcy Regulations); • household property (including recreational and sports equipment) reasonably necessary for domestic use in your household. Regulation 27 of the Bankruptcy Regulations specifically lists certain household goods that cannot be seized, including: – kitchen equipment, cutlery, crockery, foodstuffs, heatingequipment,coolingequipment,telephone equipment, fire detectors and extinguishers, anti-burglar devices, bedding, linen, towels, and other household effects which are reasonably appropriate for the household; – sufficient household furniture; – sufficient beds for members of your household; – educational, sporting or recreational items (including books) used by the children or students of the household; – one television set; – one set of stereo equipment; – one radio; – one generator, if it is required to supply electricity to the household; – one washing machine and one clothes drier; – one refrigerator and one freezer; and – one telephone. Despite the specific exemption for certain household goods, antique items may still be seized by the sheriff. If you have any queries about what goods can and cannot be seized, contact a financial counsellor. If you own goods that are not protected and you will not or cannot pay, the sheriff will leave a notice (aWalking PossessionNotice) indicating which goods have been impounded. This notice also informs you that you are not entitled to dispose of any of these goods without the sheriff’s written permission; this process is called ‘distraining’ the goods. The sheriff then informs the creditor (or the creditor’s solicitor) that goods have been distrained and that the sheriff will proceed to sell those goods if instructed to do so. It is a serious offence to dispose of goods that have been distrained but not removed, or to refuse to let the sheriff collect property that has been distrained. Goods not owned by the debtor The sheriff cannot seize goods that do not belong solely to the debtor. If the sheriff tries to distrain or seize goods owned by another person, including your partner, that person should try to provide the sheriff with proof of ownership. If this does not prevent the goods from being seized, the owner or joint owner of the goods should immediately request the sheriff to issue an ‘interpleader summons’ in the Magistrates’ Court.