The Law Handbook 2024

360 Section 5: Managing your money The purpose of the summons is to bring the parties to a court hearing to allow a magistrate to decide whether the person claiming ownership is in fact the owner of the goods in dispute (r 12.07 Magistrates’ Court General Rules). Return of warrant The sheriff can return the warrant to the creditor or the creditor’s solicitor in a number of ways: 1 If you have no goods, or money or property ‘insufficient in quantity to be distrained’, the sheriff will report this and ask for further instructions. 2 ‘Part executed’: where the sheriff has obtained part, but not all, of the amount of the warrant. 3 ‘Executed’: if you pay the amount on the warrant. 4 ‘Unexecuted’: if for any reason the sheriff cannot contact you or determine whether or not you have enough goods to satisfy the warrant. Goods sold at auction If the creditor instructs the sheriff to sell those goods listed in Walking Possession Notices, the sheriff will seize the goods and sell them at auction. The sheriff sells property, including vehicles, through commercial auctioneers, including: 1 ebay; 2 Manheim in Altona North (predominantly vehicles, trucks and machinery); and 3 Autorola (a vehicle auction business). These auctions are held regularly. The amount obtained for your goods at auction is usually much less than the value or convenience of the goods to you. You should try to avoid having your goods sold at auction; perhaps by negotiating payment with the creditor or taking out an instalment order, or selling the goods yourself prior to the sheriff distraining them. Seek advice from a financial counsellor (see Chapter 5.4: Financial counselling services). Rehearing If you either do not owe the money or believe that the amount is wrong, you should ask the sheriff to hold action for a few days while you contact the creditor’s solicitor to establish the situation. If the sheriff or the creditor’s solicitor is unwilling to give time or to re-examine the position, and you were not present when the original judgment debt order was made, seek advice immediately about making an application for a rehearing (see ‘Applying for a rehearing’, above). Instalments If you do owe the amount, it may be possible to hold off seizure by negotiating with the creditor to repay the debt by instalments. The sheriff cannot take payments by instalments, but when this is referred to the creditor’s solicitor, it is possible that an acceptable arrangement may be reached. Seek advice from a financial counsellor (see Chapter 5.4: Financial counselling services) if you require assistance in negotiating with the creditor’s solicitor. If the solicitor will not negotiate, you should consider making an application under the JDR Act to pay the debt by instalments (see ‘Instalment orders’, above). Warrant of seizure and sale If the creditor knows that you own land, they might issue a warrant of seizure and sale to try and force the sale of this land to pay the judgment debt. A creditor who has obtained a judgment for a debt can apply to the Supreme Court or County Court for a Warrant of Seizure and Sale, which directs the sheriff to seize and sell the debtor’s real estate (land or house) so that the debt can be paid. Real estate can be taken only if the warrant has been issued by the Supreme Court or County Court. If the warrant was issued by the Magistrates’ Court, it must be transferred to the Supreme Court before real estate can be seized. It is important that you get advice quickly if you are threatened with a warrant of seizure and sale for your house or land. The sheriff The sheriff will serve you with a warrant to seize and sell your real estate, and advise you of the time line for the sale of your property if you do not pay the debt. This time line will be the same as detailed at ‘Home loan default’, above. The sheriff will then put the real estate up for sale by auction with a reserve price, based on a valuation of the property. The sheriff can sell only the debtor’s interest in the property. If the property is jointly owned, the sheriff can only sell the share owned by the debtor. The interest of the debtor is the value of the land less any mortgages and outstanding rates. Because of this, a warrant of seizure and sale is not a common