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Assistant Bailiff

Guidelines

July 2009 Version 6

INTRODUCTION

These Guidelines have been prepared by officers of the Magistrates’ Court for the assistance of Assistant Bailiffs appointed pursuant to the Magistrates Court (Civil Division) Act 1992 section 15A.

The Guidelines are intended to provide background information only and are not intended to be a definitive or comprehensive statement of the law relating to execution or to offer advice as to all situations that Assistant Bailiffs could encounter.

In addition, the law invests Assistant Bailiffs as officers of the Court with particular powers and entitlements. However, those powers and entitlements carry with them onerous duties and responsibilities. The Magistrates’ Court is a public institution and is accountable not only to litigants before the Court but to the community generally for the proper and effective exercise, according to law, of the functions which have been entrusted to it by Parliament on behalf of the community. Accordingly, as Assistant Bailiffs and, therefore officers of that Court it is fundamentally important that Assistant Bailiffs be alert to the duties owed by them and to the fact that the standing and integrity of the court will be either enhanced or degraded according to the way in which those duties are discharged.

However, Assistant Bailiffs are assured that officers of the Magistrates Court are available to assist them with advice as to the proper discharge of their duties.

A G ShottA G ShottChief Magistrate

These guidelines are to be used in conjunction with theMagistrates Court (Civil Division) Act 1992 andMagistrates Court (Civil Division) Rules 1998

Table of ContentsEXPLANATORY NOTES...............................................................................................................1

ASSISTANT BAILIFF - APPOINTMENT AND FUNCTIONS.....................................................2

APPOINTMENT................................................................................................................................ 2DUTIES............................................................................................................................................. 2FUNCTIONS..................................................................................................................................... 2

ASSISTANCE................................................................................................................................... 3

HOBART........................................................................................................................................... 3LAUNCESTON................................................................................................................................. 3BURNIE............................................................................................................................................ 3DEVONPORT................................................................................................................................... 3

PROFESSIONAL DEVELOPMENT..............................................................................................3

SERVICE OF COURT PROCESS..................................................................................................3

DAYS WHEN SERVICE IS PROHIBITED.......................................................................................4EVIDENCE OF SERVICE................................................................................................................. 4AMENDMENT TO DOCUMENTS...................................................................................................4

RE-ALLOCATION OF ENFORCEMENT PROCESS..................................................................4

IDENTIFICATION OF PARTY TO BE SERVED.............................................................................4MANNER OF SERVICE................................................................................................................... 4ORDERS OF ATTACHMENT..........................................................................................................5AFFIDAVIT OF SERVICE................................................................................................................ 5EXPIRY OF A SERVICE DOCUMENT............................................................................................5PROVISION OF ADVICE................................................................................................................. 5FREQUENT SERVICE DOCUMENTS – GUIDE ONLY..................................................................5

EXECUTION OF COURT PROCESS............................................................................................5

ASSISTANCE IN EXECUTION......................................................................................................6

RIGHT OF ENTRY......................................................................................................................... 6

TRESPASS....................................................................................................................................... 6

NOTIFICATION TO THE DISTRICT REGISTRAR....................................................................6

EXPIRY OF A WARRANT............................................................................................................. 6

KEEPING OF RECORDS...............................................................................................................7

RECEIPTING MONIES COLLECTED.........................................................................................7

FURTHER........................................................................................................................................ 7

EXECUTION FEES......................................................................................................................... 7

ESTABLISHING OWNERSHIP.....................................................................................................8

GOODS ON HIRE PURCHASE.....................................................................................................8

GOODS UNDER A BILL OF SALE...............................................................................................8

WALKING POSSESSION...............................................................................................................8

SEIZURE OF GOODS..................................................................................................................... 9

STORAGE AND SAFEKEEPING OF GOODS UNDER SEIZURE.............................................9

DWELLINGS OR LAND LEVIED IN EXECUTION....................................................................9

ADVERTISING.............................................................................................................................. 10

SALE OF GOODS......................................................................................................................... 10

BANKRUPTS................................................................................................................................. 11

NO EFFECTS................................................................................................................................. 11

OTHER CLAIM OVER PROPERTY SEIZED............................................................................11

BAILIFF INTERPLEADER.......................................................................................................... 12

ASSISTANT BAILIFF EXPENSES...............................................................................................12

OTHER REASONABLE EXPENSES...........................................................................................13

CONCLUSION-: TO LEVY OR NOT TO LEVY........................................................................13

LIST OF APPENDICES................................................................................................................ 14

1. Acknowledgement of Levy...................................................................................................142. Assistant Bailiff’s Ready Reference.....................................................................................143. Bailiff’s Report................................................................................................................... 144. Judgment Debtor Questionnaire.........................................................................................145. Warrant to Sell Property.....................................................................................................146. Walking Possession Form & List of Goods seized...............................................................147. Frequent Service Documents – Guide Only.........................................................................14

APPENDIX 1.................................................................................................................................. 15

APPENDIX 2.................................................................................................................................. 16

APPENDIX 3................................................................................................................................ 20

APPENDIX 4.................................................................................................................................. 21

APPENDIX 5.................................................................................................................................. 22

APPENDIX 6.................................................................................................................................. 23

FREQUENT SERVICE DOCUMENTS – GUIDE ONLY APPENDIX 7..................................25

APPENDIX 8.................................................................................................................................. 26

ADVERTISEMENT......................................................................................................................... 26SCHEDULE................................................................................................................................. 26

Glossary of Terms......................................................................................................................... 27

Explanatory Notes

In these Guidelines quotes from any Act will be in italics followed by the section number and name of the Act. Reference to ‘the rules’ or Rule, will mean the Magistrates Court (Civil Division) Rules 1998.

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ASSISTANT BAILIFF - APPOINTMENT AND FUNCTIONS

APPOINTMENTAn Assistant Bailiff is appointed under Section 15A(1) of the Magistrates Court (Civil Division) Act 1992 by a Registrar of the Magistrates Court. There is no provision for an Assistant Bailiff to appoint other persons to perform their duties as an Assistant Bailiff.

DUTIESOnce appointed an Assistant Bailiff can perform all the functions of a Bailiff and shall in the execution of their duties conform to all general rules regulating the proceedings of the court - Section 16, Magistrates Court (Civil Division) Act 1992.

Reference to a bailiff in that Act also means Assistant Bailiff. It is also the responsibility of an Assistant Bailiff to ensure he/she is aware of all the general rules of court by obtaining a copy of the Magistrates Court (Civil Division) Rules 1998 from The Government Bookshop, 2 Salamanca Place, Hobart or accessing them from the website at www.thelaw.tas.gov.au .

Other Acts and rules that may from time to time be applicable are:

State of Tasmania Debtors Act 1870 and RulesMagistrates Court (Civil Division) Act 1992Evidence Act 2000Supreme Court Rules 2000

Commonwealth of Australia Service and Execution of Process Act 1992

Copies of these Acts are available at the following websites at www.thelaw.tas.gov.au or www.austlii.edu.au.

Rule 134 (1) a bailiff is to provide a District Registrar with a written report within 2 days after-

(a) Unsuccessfully attempting to seize any property; or

(b) seizing any property,

(c) selling any property.

These “Guidelines for Assistant Bailiffs” are also available on the Courts website at www.magistratescourt.tas.gov.au/divisions/civil/Bailiffs

FUNCTIONSThe function of an Assistant Bailiff is to carry out the service and execution of court documents relating to enforcement of judgments and orders. However, with those functions go certain responsibilities depending on the type of document and the method of service or execution. These responsibilities will be covered in more detail later in these guidelines

Assistant Bailiff Guidelines July 2009Version 6

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http://www.magistratescourt.tas.gov.au/divisions/civil/Bailiffs

It is also the Assistant Bailiff’s duty, as a Court appointed officer, to conduct himself/herself, at all times, in a manner that maintains the integrity of the Court system.

Assistant Bailiffs are required to abide by the Magistrates Court’s Code of Ethics, which is available at www.magistratescourt.tas.gov/about_us/ethics.

ASSISTANCE If you need assistance regarding procedural functions as an Assistant Bailiff you may contact one of the following persons:

HOBART Administrator of Courts, 23-29 Liverpool Street, Hobart, Tel. (03) 6233 3616.

District Registrar, Magistrates Court (Civil Division) 23-25 Liverpool Street, Hobart, Tel. (03) 62332213.

LAUNCESTON District Registrar, Magistrates Court (Civil Division), 73 Charles Street,

Launceston, Tel. (03) 63362608.

BURNIE District Registrar, Magistrates Court (Civil Division), 38 Alexander Street, Burnie

Tel. (03) 64346322.

DEVONPORT District Registrar, Magistrates Court (Civil Division), 8 Griffith Street,

Devonport, Tel. (03) 642217892.

PROFESSIONAL DEVELOPMENTIt is the personal responsibility of Assistant Bailiffs to keep themselves abreast of the enforcement processes and procedures. The ‘Assistant Bailiff Guidelines’ are updated from time to time and Assistant Bailiffs will be advised when this occurs. The Court’s website contains useful information to assist Assistant Bailiffs in performing their duties.

SERVICE OF COURT PROCESSDocuments requiring service can be served by:

A party to the proceedings Any person the parties requests A bailiff or an Assistant Bailiff A process server

There are many documents issued by the District Registrar that require service and each of these may have different rules that apply to that service.


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http://www.magistratescourt.tas.gov/about_us/ethics

Usually instructions regarding service are contained within the document or attached to it. However, this is not always the case and the Assistant Bailiff must ensure that he/she is aware of what will constitute correct service, for instance some documents have an expiry date and if served after that date are of no effect.

The rules of service of most documents issued under the Magistrates Court (Civil Division) Act 1992 are contained in the Magistrates Court (Civil Division) Rules 1998, particularly rules 39 – 43.

DAYS WHEN SERVICE IS PROHIBITEDRule 40 (4) - Provides that no process shall be served on Christmas Day or Good Friday.

EVIDENCE OF SERVICEAs well as the completion of an affidavit of service, an Assistant Bailiff may be called upon at any time to give sworn evidence in relation to the service of any document and therefore should ensure a sufficient record is kept to enable him/her to swear to that service. The District Registrar requires the Assistant Bailiff to maintain a service book.

AMENDMENT TO DOCUMENTSThere should be no amendment or endorsement to the face of any document issued by the District Registrar, unless the District Registrar makes that amendment or endorsement.

RE-ALLOCATION OF ENFORCEMENT PROCESSOnly a District Registrar has the authority to allocate and re-allocate enforcement process amongst the pool of Assistant Bailiffs. The Court registry maintains a register for the purpose of ensuring proper supervision of allocation and re-allocation of enforcement process. If an Assistant Bailiff is unable to accept or execute an enforcement process for any reason, he/she must immediately notify the District Registrar. If an Assistant Bailiff has accepted any enforcement process which he/she then finds unable to execute due to excessive workload or for other reason, the enforcement documents must be immediately returned to the Court registry.

IDENTIFICATION OF PARTY TO BE SERVEDVerbal confirmation is usually sufficient in the identification of a party to be served.

MANNER OF SERVICE The methods of service are contained in the Magistrates Court (Civil Division) Rules 1998. These rules should be studied carefully, particularly in relation to the service of companies.

Tip: Where service must be carried out at the judgment debtor’s place of employment it is prudent to speak with any supervisor or manager first.


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ORDERS OF ATTACHMENTIt should be noted that these orders should be served, as required, regardless of the status of the employee within the company or business. The Garnishee is entitled to defend the order if they consider they are unable to carry out its terms. Remember a paymaster can also be a judgment debtor just like anyone else, so you must record on the affidavit the identity of the person served and their title.

AFFIDAVIT OF SERVICEYour signature to and the swearing of an affidavit of service must be before a Justice of the Peace. Justices are located in each Court Registry.

EXPIRY OF A SERVICE DOCUMENTA Claim remains valid for 12 months from the time of issuing by the Court Registry. After that time, if it has not been served the Claim must be renewed by the Court. Note, that a claim served after the date that the defendant must respond to it is of little effect. For other documents, particular notice should be taken of the Court date mentioned therein.

PROVISION OF ADVICEThe Assistant Bailiff is not a legal practitioner and therefore is not able to provide advice of a legal nature. Often in the performance of his/her duties the Assistant Bailiff will be asked, “ What do I do now?” The best answer is to suggest that they contact the claimant, their own solicitor or the Community Legal Service the address of which is in the telephone directory.

FREQUENT SERVICE DOCUMENTS – GUIDE ONLYMust be used as a guide in conjunction with applicable Act and Rules. This table is attached at Appendix 8

EXECUTION OF COURT PROCESSThe most common process an Assistant Bailiff will be required to execute is a Warrant to Sell Property against personal property and lands of judgment debtor.

Usually called a Warrant to Sell Property or simply a warrant. See Appendix 5 A copy may be given to the judgment debtor when the warrant is executed.

A warrant is an order of the court issued by the District Registrar requiring a bailiff forthwith to make and levy the sum stated at the foot of the warrant (being the amount due to the claimant under a judgment obtained against the judgment debtor) by seizure and sale of the personal property of the judgment debtor and also bills of exchange, promissory notes etc, and if these are not sufficient then by seizure and sale of the lands


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of the judgment debtor. What may be taken in execution is clearly defined in Rule 131 Magistrates Court (Civil Division) Rules 1998.

Goods are NOT to be levied; clothing, bedding, and tools of trade up to the value of $3,000

As an appointed officer of the Court the Assistant Bailiff should at all times act in a professional and courteous manner, many times under difficult circumstances. The Assistant Bailiff’s task is to carry out the execution of the warrant to the best of their ability within the terms of the law. He/she should never make any value judgment on the personal circumstances of the judgment debtor.

ASSISTANCE IN EXECUTIONThe Police will assist, any Assistant Bailiff to keep the peace in the performance of his/her duties.

RIGHT OF ENTRYA warrant does not give authority to force entry to any dwelling, business premises or secured property, but does entitle the Assistant Bailiff to enter upon private property without force for the purpose of execution of the warrant.

TRESPASSA Bailiff is deemed not to be a trespasser by reason of an irregularity in the form of the Warrant. Magistrates Court (Civil Division) Act 1992 Section 18

NOTIFICATION TO THE DISTRICT REGISTRARThe District Registrar must be provided with a report within three (3) weeks from the day of receipt of any warrant not executed. The Assistant Bailiff should make a return to the District Registrar stating the reasons why it has not been executed. The warrant will not necessarily in all case be returned with this notification.

It is not necessary to return the warrant when notifying the District Registrar of a levy being made but a photocopy of the walking possession should be forwarded.

A clear and concise report to the District Registrar as to the outcome of execution should be made on the Bailiff’s Report Form at Appendix 3.

EXPIRY OF A WARRANTA warrant expires 12 months from the date of issue, and should be returned to the District Registrar at least 24 hours before the expiry date together with reasons as to why it could not be executed.

Assistant Bailiffs must noted that a warrant should be acted upon with out any undue delay. Some warrants may prove difficult to execute, but Assistant Bailiffs should


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always be attempting to finalise the matter and not just let it sit. Assistant Bailiffs should also be aware that they can be held liable with regard to neglect and escaped levies.

KEEPING OF RECORDSThe District Registrar requires all Assistant Bailiffs to keep a warrants record book. The time and date of receipt of all warrants of execution must be recorded by the Assistant Bailiff. This is important not only in circumstances where evidence may be required but also where a number of warrants for the one judgment debtor are received.

In these circumstances the Assistant Bailiff must deal with warrants in the order in which they are received and should one be stayed this does not prevent the Assistant Bailiff from proceeding to execution on the next warrant.

The District Registrars will conduct an audit of these records from time to time.

RECEIPTING MONIES COLLECTEDAssistant Bailiffs must carry a (triplicate leaf) Receipt Book when executing Warrants and on the collection of any money, the Assistant Bailiff must:

1. Issue a receipt to the judgment debtor containing the following detailsa. Date of issueb. The claim number mentioned on the court processc. The judgment debtor’s name as written on the processd. The amount in words and figures.e. Signature of Assistant Bailiff

FURTHER 1. All monies received should be disbursed direct to or as directed by, the

Judgment Creditor (or their solicitor) within two (2) working days from receipt of the monies. Monies should not be paid to the Magistrates Court.

2. Retain a copy of the receipt for your record.

Tip: Be wary of accepting a defendant’s personal cheque.

EXECUTION FEESAssistant Bailiffs may only recover from a Judgment Debtor an execution fee as prescribed by the Magistrates Court (Civil Division) (Fees) Regulations 2008 r.5 Schedule1, Item 4. Execution fees above the prescribed fee can only be payable by the Judgment Creditor by contractual arrangements made prior to accepting documents for execution.

ESTABLISHING OWNERSHIPThis is the responsibility of the judgment creditor in all circumstances.


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Where it is not provided the Assistant Bailiff can request that the judgment creditor provide proof of ownership, such as Department of Transport search certificates in relation to the ownership of motor vehicles, or title searches in relation to the land.

GOODS ON HIRE PURCHASEGoods under ‘Hire Purchase’ agreements are the property of the hirer until final payment has been made by the purchaser (judgment debtor). The Assistant Bailiff can only levy on the right title and interest of the judgment debtor (purchaser) but cannot remove the goods for sale unless the Court advises that the hirer renounces all claims under the hire-purchase agreement and agrees to the goods being sold.

The Assistant Bailiff should contact the District Registrar for instructions in these circumstances.

GOODS UNDER A BILL OF SALEAs with ‘goods under hire purchase’ the judgment debtor’s right title and interest in ‘goods under a Bill of Sale’ can be sold. The Assistant Bailiff should ensure he/she seeks the appropriate legal advice in these circumstances.

WALKING POSSESSIONAfter a levy is made upon nominated goods, they can be placed on “walking possession” i.e. not removed, but left with the judgment debtor. However the goods then become the property of the court. The judgment debtor must sign the appropriate form allowing the Assistant Bailiff to return and collect the goods, if the warrant is not satisfied. A copy of a Walking Possession form is shown at Appendix 6.

Conditions may be attached to a “walking possession” levy to allow the judgment debtor to continue to use the goods provided they are not disposed of, sold, or taken out of the jurisdiction. It is recommended in such circumstances that the Assistant Bailiff ensures that the judgment debtor carries insurance cover over the goods for the current market value of the goods.

In some circumstances, it may be preferable that a motor vehicle placed on walking possession should not be moved by the judgment debtor, and that the bailiff takes possession of the keys and records the odometer reading.

Whilst every effort should be made to seize goods in the presence of the judgment debtor, the judgment debtor need not be present when the Assistant Bailiff returns to seize goods placed on walking possession. An Assistant Bailiff may only force entry when returning to seize goods already levied, but should only do so in the company of a Police Officer.

Tip - Do not limit the period of a walking possession, you may forget to renew it and lose the levy. Goods, such as a motor vehicle, that are not insured should be seized for safekeeping.


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SEIZURE OF GOODSGoods seized in execution should be removed, by the appropriate expert, for safe keeping, usually to the intended place of sale, ie an auction room, however it may be necessary to place goods in storage pending sale. Storage costs are an Assistant Bailiff expense and can be deducted from the proceeds of a sale.

Property such as a motor vehicle should be removed for safekeeping by a towage contractor and not driven by the Assistant Bailiff or the judgment debtor. Towage fees are expenses incurred in executing the warrant and would be deducted from the proceeds of a sale.

Property (other than certain household goods) can be seized by the Assistant Bailiff on their first visit and need no be placed on walking possession.

IMPORTANT - the Assistant Bailiff must act responsibly when seizing goods and minimise the cost to the judgment debtor. For instance, if goods are seized in Burnie they should be stored and sold in Burnie and not transported to another location simply because that is more convenient to the Assistant Bailiff.

STORAGE AND SAFEKEEPING OF GOODS UNDER SEIZUREProperty seized becomes the property of the court in the possession of the Assistant Bailiff. Therefore all reasonable measures must be taken to safeguard that property.

Tip: When seizing a motor vehicle it is wise to fully inspect and record any defects or property, such as audio equipment, that may be present. A claim later that the car was damaged or had something removed either during towage or whilst in storage may be difficult to answer.

DWELLINGS OR LAND LEVIED IN EXECUTIONOwnership should be confirmed, before levy, by provision to the Assistant Bailiff, by the judgment creditor, of Title and Valuation details.

Enquiries with the judgment debtor, or by the title search, should establish the extent to which the property may be mortgaged and who the mortgagor is.

It is only the judgment debtor’s equity in any real property that can be sold to recover the execution debt. Therefore in the sale of land or a dwelling the interests of any mortgagor must be protected as well as the interest of the judgment creditor.

Before proceeding to levy on a judgment debtor’s land, the Assistant Bailiff must furnish a report to the District Registrar that there are no personal assets of the judgment debtor that are capable of being seized.

Once the levy has been made, the District Registrar should be notified immediately. All further action in relation to the sale of land or dwellings will be completed by the District Registrar in conjunction with the Crown Solicitor.


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Tip: The warrant requires that a levy on property may only occur after efforts to levy on personal property are exhausted.

ADVERTISING

An Assistant Bailiff may sell a judgment debtor’s property after the expiration of 7 days from the date the property was seized. Rule 132 (1)

Property must be sold at a public auction or in a manner directed by the court.Rule 132 (2)

Property must be advertised in the local daily paper 3 clear days before the day of sale. Rule 132 (3)

See Appendix 8 for the typical format of an advertisement.

The cost of any advertising is an Assistant Bailiff expense and is recovered from the proceeds of sale.

Note: Property should not be advertised for sale until at least 7 days after seizure. If advertised for sale before the 7 days has expired, and in the mean time, the judgment debtor satisfies the warrant then the cost of advertising cannot be collected from the judgment debtor. This would then become a cost that the Assistant Bailiff could be liable for.

SALE OF GOODSNo bailiff or other officer of the court shall, either for himself or as agent for any other person, directly or indirectly, purchase any property at any sale under any process of the Court. Rule 132 (4)

It has long been the practice to use public auction houses for the sale of goods. This maximises public exposure and ensures the fairest price for the judgment debtor. Goods of a perishable nature may be sold immediately on seizure.

Personal property may by consent in writing of the judgment debtor be sold by private contract at any time.

Tip: It is a good idea, depending on the levy, to obtain a valuation from a qualified Motor Vehicle Valuer of a motor vehicle before sale. This is a proper Assistant Bailiff expense.

BANKRUPTSBankruptcy Act 1966Occasionally, the District Registrar is notified periodically by the Insolvency and Trustee Services Australia (ITSA) or the registered trustee (usually a firm of accountants) that a judgment debtor has become bankrupt while Court proceedings are in progress.


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Where there are actions in progress with the court, the District Registrar will contact the Assistant Bailiff in charge of the execution to return any process he/she may have.

Usually the judgment debtor will advise the Assistant Bailiff that he/she is a bankrupt, and if so should be able to provide some proof of this. In these circumstances it is advisable to check with ITSA with regard to the accuracy of the judgment debtor’s statement. It may still be prudent to place property on walking possession where confirmation of the bankruptcy is required.

Tip: If a judgment debtor has signed an Intention To Go Bankrupt all action is suspended for 7 days.

NO EFFECTSOften the judgment debtor will not have, or not be the owner of, sufficient goods for the Assistant Bailiff to make a successful levy. A report to this effect, must be submitted to the District Registrar with the warrant within 2 days of the attempted levy. The report should detail the bailiff’s enquires regarding the ownership of property and the judgment debtors income.

OTHER CLAIM OVER PROPERTY SEIZEDAssistant Bailiffs should be aware of the following Rules:

136. (1) Any person other than a judgment debtor is to give notice in writing to a bailiff if that person claims any interest in – (a) any debt or personal property taken or intended to be taken by the

bailiff in the execution of any process; or

(b) the proceeds of the execution of any process.(2) The notice of claim is to state the person's address for service.

(3) A bailiff is to deliver the notice of claim to the judgment creditor as soon as practicable.

(4) The judgment creditor, within 4 days after receiving the notice, is to give the bailiff notice in writing as to whether the claim is admitted or disputed.

BAILIFF INTERPLEADERAssistant Bailiffs should make themselves aware of rule 137, which states:

137. (1) On receiving a notice from a judgment creditor admitting a claim under rule 136(4), a bailiff may – (a) withdraw from possession of the property claimed in the notice; and


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(b) apply to the Court for an order restraining the bringing of an action against the bailiff for or in respect of the bailiff having taken possession of that property.

(2) A bailiff may apply to the Court for relief by way of interpleader – (a) on receipt of a notice from a judgment creditor disputing a claim; or

(b) if the judgment creditor fails to give notice to the bailiff under rule 136(4) within the period specified in that subrule.

(3) A judgment creditor who admits a claim is only liable to a bailiff for any costs, fees and expenses the bailiff incurs before receipt of the notice admitting the claim.

(4) A bailiff's claim for costs, fees and expenses is not an interest in the property for the purpose of interpleader proceedings.

Where the Assistant Bailiff does not consider sufficient proof of ownership is given by the third party he/she must then advise the District Registrar who will issue a summons calling those parties concerned before the court to determine the claim. It is not for the Assistant Bailiff to prove ownership but for the judgment creditor to do so.

The property should remain on levy until the claim is decided.

ASSISTANT BAILIFF EXPENSESWhere the Assistant Bailiff has incurred expenses and is unable to recover from the sale of personal property or lands sufficient to be reimbursed, then the judgment creditor becomes responsible for the expenses incurred.

The Scale of Fees provides the fee for execution that can be charged to a judgment debtor at the time of execution of a warrant. If execution is made by payment in full direct to the Bailiff there are no further Bailiff expenses applicable other than the prescribed execution fee. This fee is reviewed each financial year and you must therefore check with the court on 1st July each year for the new fee.

If execution is made by the seizure and sale of property belonging to the judgment debtor all necessary expenses involved in the seizure and sale, for instance, towage fees, storage fees, insurance, advertising and auction fees are charges necessary in the execution and are therefore legitimate expenses chargeable against the proceeds of the sale, together with the execution fee mentioned above.

Proceeds of a sale together with the Warrant should be forwarded directly to the Court that issued the Warrant of to Sell Property.

OTHER REASONABLE EXPENSESThe Assistant Bailiff can also apply to the District Registrar for any other reasonable expenses incurred in the execution of the Warrant. For example, the levy may have been placed on livestock such as a racehorse and the Assistant Bailiff had to send a number of


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facsimiles to stud clubs to confirm stud registration regarding a proper sale price, and also visit the animal at agistment each day for security reasons.

These extra expenses, if itemised and supported with receipts or logs, can be claimed and may be allowed by the District Registrar.

CONCLUSION-: TO LEVY OR NOT TO LEVYThe Warrant to Sell Property that is forwarded to the Assistant Bailiff requires him/her to collect the judgment debt and costs from the judgment debtor by ‘seizure and sale of the personal property of the judgment debtor.’ Seizure of property usually involves transport of that property, proper storage and safekeeping. The rules require that the property be sold at auction, that the sale be advertised etc. All these costs become costs in the action and need to be redeemed from the sale of the property, together with sufficient funds to cover the reason the warrant was issued i.e. the judgment debt.

Therefore when an Assistant Bailiff assesses what property to seize and sell, he/she must consider the likely value of the property upon sale. That is, ask the question:

‘Will it cover the amount on the warrant, plus all the other costs involved in sale, or will I end up only meeting the costs of the towage, storage, advertising and auction from the sale of the property and not achieve the principal purpose of the Warrant –i.e. recovery of the Judgment creditor’s judgment and costs?’

It has been known that the Court Bailiff has been instructed to seize the assets of the judgment debtor, proceeded to sale, and after the costs involved in the seizure and sale were deducted the Judgment creditor received the grand total of $5.00 towards the judgment debt. This action had the effect of removing the only assets the judgment debtor had that he could sell to pay out the debt.

In the circumstances, an explanation to the judgment debtor that if the Assistant Bailiff sells the property at auction the outcome may not be to the judgment debtor’s advantage because of the costs involved, but if the judgment debtor sells the property privately the costs involved would be less and the amount recovered would all be able to be put to the debt.


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LIST OF APPENDICES

1. Acknowledgement of Levy

2. Assistant Bailiff’s Ready Reference

3. Bailiff’s Report

4. Judgment Debtor Questionnaire

5. Warrant to Sell Property

6. Walking Possession Form & List of Goods seized

7. Frequent Service Documents – Guide Only

8. Advertisement – Bailiff’s Sale


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Appendix 1ACKNOWLEDGMENT OF LEVY

TO ALL PERSONS:

TAKE NOTICE that the Assistant Bailiff at ____O’clock on this day has taken possession and custody of the items of real and personal property listed below towards, and in satisfaction of, a Warrant to Sell Property issuing out of the Magistrates Court in Action No.________________

LIST_______________________________________________________________________

_______________________________________________________________________

_______________________________________________________________________

_______________________________________________________________________

_______________________________________________________________________

_______________________________________________________________________

WARNING

If there is any interference, use or taking of the items listed above without the written permission of the Assistant Bailiff, the person so using, interfering with or taking the items may render him or herself liable to proceedings initiated under the Criminal Code Act 1924 (as mended)

Dated this __________________________day of ______________________________

DISTRICT REGISTRARMAGISTRATES COURT OF TASMANIA


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Appendix 2

ASSISTANT BAILIFF’S READY REFERENCEInitial steps:Paper work received.

The warrant you receive must be stamped and signed by a Tasmanian Magistrates Court together with a document titled Directions to Bailiff.

What you do next:Make contact (attend) with Judgment Debtor to ascertain:1. demeanour (i.e. hostile, aggressive etc.)

2. whether they intend to pay the outstanding monies or if full action will have to be taken on the warrant. (eg with smaller debts the Judgment Debtor may be able to make restitution or at least come to an arrangement with the Judgment Creditor/ those acting on behalf of the Judgment Creditor) to begin repayments in a timely manner.

3. Allow a short period of time (eg 7 days) for one last opportunity for the Judgment Debtor to pay the outstanding amount.

If payment is not made:

1. Visit the Judgment Debtor and complete a “Walking Possession” form

2. Seize items as noted on ‘Walking Possession’ form.

This form is a legal document and once completed means that the items listed therein become the property of the Magistrates Court.

The Defendant is required to sign the “Walking Possession” form in acknowledgement that they understand what it means.

A Walking Possession means:1. the property listed cannot be sold, used or removed from the premises. In regard to

motor vehicles the keys should be taken and odometer reading recorded. The vehicle should not be used from that time forward unless the Assistant Bailiff is satisfied that the judgment debtor carries insurance cover for over the vehicle for its current market value. This is so that the item retains the value estimated on the form - (ie not involved in an accident/damaged).

2. it also provides the Assistant Bailiff the power to re-enter the premises to seize such goods as recorded at a later time.

If the Judgement Debtor refuses to sign the Walking Possession form the goods may be seized at that time and the Judgement Debtor given a copy of the warrant.


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Alternatively, an Acknowledgement of Levy form may be completed and left with the defendant or a resident over the age of 18 years at the premises, and does not require a signature from the Judgement Debtor.

Examples of items that should be recorded/seized –Televisions Lounge suitesVCR/DVD players Motor vehicles/Motor cyclesStereo systems Bicycles

Examples of items that cannot be recorded/seized (essential items)– Clothing Tools of trade up to a value of $3,000 Beds/bedding

Power for obstructionIf the Defendant refuses to allow entry to the residence or premises you should refer to the Police Offences Act 1935,Section 34B(2)(a), (b) and (c).

_ An Assistant Bailiff does not have a right of entry unless a walking possession has been signed.

_ An Assistant Bailiff does not have right of entry to a dwelling if entry is barred or refused by any person at that address.

No property of valueIf there is no property of value for you to record on the “walking possession” form you must:1. submit a subject report outlining this and return it, with the warrant, to the court. 2. complete a ‘judgment debtor questionnaire’ which outlines the earnings,

dependants, financial commitments amongst other criteria of the Judgment Debtor for the information of the Court/Judgment Creditor.

If the property is sold or destroyed after recording a walking possessionThe Magistrates Court is the owner of the property (as explained to the Judgment Debtor when the ”Walking possession” form was completed and signed)

_ If the property is sold or destroyed after the Walking Possession form was completed and signed, contact the police. The police should then conduct a video interview with the Judgment Debtor for the appropriate offence (eg Stealing under the Criminal Code 1924 or Destroy/Injure Property under the Police Offences Act 1935:

If the estimated value of items is less than the costs estimated to be incurredIf the costs to be incurred outweigh the amount estimated to be recouped at the auction, serious consideration needs to be given before taking any action to seize and sell property.

In such a case, communicate this information to the Judgment Creditor so that they can make a decision as to whether to proceed (ie towage/advertisement costs may take a large portion of the profit estimated to be achieved at the auction). The decision to proceed in these circumstances is not to be made by the Assistant Bailiff.


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A valuation should be sought from an independent valuer if the item is of significant value or of a unique nature to ensure that a reasonable valuation is obtained (this is a recognised Bailiff expense and can be recouped from the sale of the levy).

Arranging an AuctionAllow 10 days from when items seized before you advertise.

An advertisement should be published in the local newspaper in the region. A copy of the ad should also be displayed on the notice board at the local council office.

Allow a minimum of 3 days between the advertisement and the date of the auction. It is preferable that Auctions of seized goods are conducted by licensed auctioneers who have expertise in obtaining the best market price. Auctions should not be conducted by bailiffs or Assistant Bailiffs themselves. Auction sales are held regularly at auctioneers premises around the state. Alternatively, in country towns, the auction may be held at the Police Station.(previously to be arranged by you). Alternatively, you may hold it anywhere convenient.

Holding an Auction (if a licensed auctioneer is not available)1. You must nominate a reasonable starting bid for each item to be auctioned.

2. The estimated value of the item that you had previously recorded on the ‘walking possession’ form should be used as a guide.

3. Buyers must be made aware that the price bid for an item does not include GST and that the GST surcharge of 10% is to be added to the bid price (i.e. bid is $500, total cost for item is $550 including GST)

4. If a bid is made that you are satisfied with (using reasonable judgement) you may accept it.

5. The Judgment Debtor is not allowed to bid. However, if another person acts on his behalf the bid can be accepted and payment received.

6. If there are further outstanding Warrants, the item can then be reseized, as it has become an asset of the Judgment Debtor.

7. An auction can be held if only one person attends and makes a bid. Absentee bids could still make the process competitive. However, acceptance of any bid will require an assessment of the valuation assessment and other factors.

8. If no one attends the auction; Write to the Judgment Creditor advising him/her of this and :

Include any copies of any outstanding accounts (ie newspaper/towage/cartage), with instructions to making payment for these expenses to the Magistrates Court.

seek instructions as to how to proceed with the property (ie return to the Judgment Debtor or make another attempt to sell).


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Items cannot be readvertised and re-auctioned unless the Judgment Debtor consents or the Judgment Creditor or his/her agent obtains a ‘writ of venditioni exponas’ from the Supreme Court. A Writ of Vendition Expenses allows the property to be sold at any price that is obtained, even if it is well below the valuation.

Goods may be transferred to another assistant bailiff’s region if it can be shown that it is in the best interests of all parties concerned (i.e. a better price will be obtained for the levy at auction). If the goods are auctioned by an independent auctioneer the Assistant Bailiff must be present to authorise the sale and attend to any questions from prospective purchasers.

All documentation pertaining to this matter should be returned to the Magistrates Court.

Payment For Items Sold At Auction You must only accept a bank cheque or cash. Do not accept personal cheques.

Bank cheques must be made out to the Magistrates Court, Tasmania.

If payment cannot be made on the day an item will only be held for 48 hours. Thereafter the property can be offered again for sale by auction. (see Annexure 8)

Items are not to be released until payment is made.

The Assistant Bailiff must complete an ‘Assignment’ form under the Magistrates (Civil Division) Rules 1998 which transfers the legal ownership of an item of property from the Judgment Debtor to the purchaser.

Payment Of Accounts From Sale ProceedsAll reasonable costs incurred in carrying out the instructions of a ‘warrant to sell property’ are the responsibility of the Judgment Creditor or his/her solicitor/agent. These include:

Arranging for a removal company or similar to retrieve the items of property being seized where appropriate (i.e. it is not appropriate to hire removalists to retrieve items that could reasonably be transported in an Assistant Bailiff’s vehicle);

Towage of motor vehicles or motor cycles, they are not to be driven by Assistant Bailiff’s; and

Payment of advertisements placed in newspapers.

Assistant Bailiffs are not removalists. Assistance should be obtained from an appropriate external agency for the removal of large or heavy items.

In the event of a successful sale of the levied item or items the above costs may be deducted first from the proceeds of the sale, before the balance is disbursed to the Judgment Creditor.


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APPENDIX 3BAILIFF’S REPORT

ACTION NO.In the Magistrates Court, Hobart

JUDGMENT CREDITORBETWEEN:

JUDGMENT DEBTOR

DEBT: $___________ COSTS: $______________ TOTAL $ ____________

Execution Levied by: ___________________________________(Name Asst. Bailiff)

If not executed, why not? (no effects etc)______________________________________If instructed to levy on any particular goods, state the goods.______________________________________________________________________________________________RESULTGoods levied upon and approximate value: $___________If removed, where have goods been moved to: __________________________________If levied upon security not removable, what is the security? ________________________

IF NO EFFECTS:What goods and chattels did the Bailiff find on the premises?____________________________________________________________________________________________________________________________________________________________________________________________________________To whom did these belong? _________________________________________________________________________________________________________________

If not the judgment debtor, what proof of other ownership was given to the Bailiff?____________________________________________________________________

If the warrant has been successfully executed:a) Amount collected $___________(Cash/Cheque) b) Date collected ___________

c) Paid to ________________________________ d) Date paid _______________

NOTE:Please provide the Court with information regarding the judgment debtor’s assets if any.

Date:_________________ Assistant Bailiff___________________

THIS FORM MUST BE COMPLETED BY THE ASSISTANT BAILIFF AND RETURNED WITH THE WARRANT TO SELL PROPERTY, TO THE DISTRICT REGISTRAR OF THE COURT.


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Appendix 4JUDGMENT DEBTOR QUESTIONNAIRE

DATE WARRANT NO.

FULL NAME:

ADDRESS:

HOME TELEPHONE NO BUSINESS TELEPHONE NO

ARE YOU MARRIED? YES ( ) NO ( ) HOW MANY CHILDREN?

ARE YOU UNEMPLOYED? YES ( ) NO ( ) FOR HOW LONG?

ARE YOU BANKRUPT? YES ( ) NO ( ) DO YOU RECEIVE UNEMPLOYMENT BENEFITS? YES ( ) NO

( )

HOW MUCH PER FORTNIGHT?$ WHAT IS YOUR EMPLOYER’S NAME?

IF SELF EMPLOYED, WHAT IS YOUR BUSINESS?

FROM WHERE DO YOU OPERATE?

ARE YOU RENTING OR BUYING YOUR HOME?

IF RENTING, WHAT IS THE WEEKLY/FORTNIGHTLY/MONTHLY RENT? $

IF BUYING – WHAT ARE YOUR MONTHLY REPAYMENTS? $

THROUGH WHICH FINANCIAL INSTITUTION?

OR DO YOU OWN YOUR HOME FREEHOLD? YES ( ) NO ( )

DO YOU OWN ANY OTHER REAL ESTATE? YES ( ) NO ( )

WHERE?

ANY MORTGAGES? YES ( ) NO ( ) AT WHICH FINANCIAL INSTITUTION?

DO YOU OWN A MOTOR VEHICLE? YES ( ) NO ( ) MAKE, MODEL AND REGISTRATION

NUMBER_________________________DO YOU OWN MORE THAN ONE VEHICLE? YES ( ) NO ( ) MAKE, MODEL AND REGISTRATION

NUMBER_____________________________IS THERE A LEASE OR HP AGREEMENT? YES ( ) NO ( )

AT WHICH INSTITUTION?

WHAT ARE YOUR REPAYMENTS?$ HOW MANY REPAYMENTS REMAIN OUTSTANDING?______

DO YOU OWN A BOAT? YES ( ) NO ( ) DO YOU OWN A CARAVAN? YES ( ) NO ( )

DO YOU OWN A LOUNGE SUITE? YES ( ) NO ( ) REFRIDGERATOR? YES ( ) NO ( )

FREEZER? YES ( ) NO ( ) VCR/DVD? YES ( ) NO ( )

TELEVISION? YES ( ) NO ( ) STEREO SYSTEM? YES ( ) NO ( )

HAVE YOU ANY OTHER HOUSEHOLD GOODS? E.G PAINTINGS, DRYER, CHAIRS, COFFEE TABLES, ETCYES ( ) NO ( ) (UNDERLINE THOSE WHICH ARE FREEHOLD, AND ADD ANY FURTHER ITEMS BELOW) DO YOU HAVE ANY SAVINGS?YES ( ) NO ( )

WITH WHICH FINANCIAL INSTITUTION?

DOES YOUR HUSBAND/WIFE WORK? YES ( ) NO ( ) WHERE?

DO YOU HAVE ANY OTHER COMMITMENTS? CREDIT CARD ACCOUNTS, STORE ACCOUNTS,

PERSONAL LOANS? YES ( ) NO ( )

PLEASE STATE DETAILS, NOTING REPAYMENTS EACH MONTH:________________________

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Appendix 5TASMANIA

MAGISTRATES COURT (CIVIL DIVISION)FORM 23

WARRANT TO SELL PROPERTY

MAGISTRATES COURT ACTION No. .Address: Phone No: Fax No:

CLAIMANT (Name only)

DEFENDANT (Name only)

Balance owing after payments $ plus interest since last process $ (calculated from………….to……….. @.............%p.a.) $plus filing fee $plus bailiff’s fee $plus solicitors costs $other $_____TOTAL OWING $_____

plus interest at the rate of % p.a. on the balance accruing from time to time from………/……..../200….until payment, plus the costs of executing this Warrant.

name....................……….............................................……………………….....(the "judgment debtor")of................………................................................................. ………………………………….(address)owes………. ...........................................................................…………………(the "judgment creditor")of……....................................................................................…………………………………...(address) the above total owing.

TO THE BAILIFF: - You are directed to:1) Sell such of the real and personal property of the judgment debtor as are within the State of Tasmania

to satisfy the above total owing plus interest until you receive payment plus the costs of executing this Warrant.

2) Payment received must be disbursed directly to the Judgment Creditor and/or Solicitor, or through Service Tasmania. Account/Product code “WSP” (Warrant to Sell Property)

3) Report in writing to the above Registry of the Court concerning your execution or attempted execution of this Warrant and the results thereof. The Warrant must be returned to the Court with your Report.

4) In the interest of obtaining a better outcome please provide any specifically known property of the judgment debtor:

1. _________________________________________________________________________2. _________________________________________________________________________3. _________________________________________________________________________

Date of Issue__________

............................................Registrar [or District Registrar] (COURT SEAL)

Filed by or on behalf of ..................…………...............................................whose address for the service of documents is: ..........................................................................

Phone: Fax: DX: Contact:

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Appendix 6IN THE, MAGISTRATES COURT (CIVIL DIVISION)

HELD AT ………………………… No: ………………….

BETWEEN

.................................................................................................... JUDGMENT CREDITOR

AND

.........................................................................................................JUDGMENT DEBTOR

BAILIFF’S LEVY – WALKING POSSESSION – NOTICE AND ACKNOWLEDGMENT

To: The Judgment Debtor

You are advised that pursuant to a Warrant to Sell Property I have applied a levy upon your goods specified in schedule 1 below (“the goods”) in order to satisfy the judgment debt payable by you in this matter.

Instead of removing the goods from your possession for immediate sale, I am allowing you to have “walking possession” of the goods subject to this levy. Your walking possession is subject to any conditions listed in schedule 2 below.

On the _______day of ______________ I shall return to remove the goods subject to this levy unless in the meantime you have satisfied the judgment debt, or made satisfactory arrangements with the Judgment Creditor.

Failure to comply with the conditions of this “walking possession” levy will render you liable to prosecution for a crime under the Criminal Code 1924

SCHEDULE 1

LIST OF GOODS LEVIED

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SCHEDULE 2

CONDITIONS

1. You must not sell, damage, or destroy the goods.

2. You must not remove the goods from:

� Tasmania ; OR

� Specified region: ____________________________

Dated this ………….day of …………………………

…………………………………………(Assistant Bailiff)

I acknowledge receipt of the Notice and understand its contents

……………………………………….(Judgment Debtor)


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FREQUENT SERVICE DOCUMENTS – GUIDE ONLY Appendix 7Title and Act Number of

copiesPurpose Method of Service Special rules applicable to

this particular documentReturn of service Comment

ClaimMagistrates Court (Civil Division) Act 1992

Original and one for each defendant.

Requires the defendant to respond in answer to a claim

As provided by the Magistrates Courts (Civil Division) Rules 1998 r.40

The court only requires a return of service once the claim has been defended or judgment is to be entered

If the defendant is a company, see r. 40 (i) (d).

Judgment SummonsDebtors Act1870

Original and one for the Judgment Debtor

Requires the Judgment Debtor- to attend Court.

Personal Service only.Record the method of identification

Served at a reasonable time before the actual hearing and in time for notification to reach the registry that service was affected.

Promptly return the original, with a completed affidavit of service, to the issuing registry. Endorse place and time of service.

Conduct money should accompany the summons. If service appears unlikely before the Court date notify the registry.

Summons to a witness. Magistrates Court (Civil Division) Rues 1998 - Rule 40 (2)

Original and one for the party to be served.

Requires attendance by a witness at Court.

Personal service only Served at least 4 days before the date fixed for attendance of the witness

Promptly return the original, with a completed affidavit of service, to the issuing registry.Endorse place and time of service.

If service appears unlikely before the Court date contact the Court or party issuing and inform them.

Interpleader. SummonsMagistrates Court (Civil Division) Rules

Original and one for the party to be served

Appearance at Court hearing regarding claim on property held by bailiff or Assistant Bailiff.

In the same manner as a claim.

Must be served at least 5 days before the Court date.


If service appears unlikely before the Court date contact the Court or party issuing and inform them.

Order. Applicable Act, usually endorsed as a heading on the

Original and one for the party to be served

Notification to a party of a Court order.

As provided by the service rules of the applicable Act.

Promptly return the original, with a completed affidavit of service, to the issuing

The order may include instruction regarding service ie personal, within 7 days

Garnishee Order NisiMagistrates Court (Civil Division) Rules 1998

Original and two copies for the Garnishee

Attachment of wages or salary to recover judgment debt.

As provided in the Magistrates Court (Civil Division) Rules 1998. Must be the registered office or place of business of Garnishee.

On the affidavit of service endorse the title of the person served.Serve in time for the Garnishee to file a defence 5 days before the court date.


Where possible service should be directly on the paymaster or employer.

Order Absolute for Attachment of Salary. Magistrates Court (Civil Division) Rules 1998

Original and one copy for the Garnishee.

Confirmationorder for Attachment of wages or salary to recover judgment debt.

As provided in the Magistrates Court (Civil Division) Rules 1998.

On the affidavit of service endorse the title of the person served.

Promptly return the original, with a completed affidavit of service, to the issuing registry.Endorse place and time of

If possible on the person the previous order was served on.

Noticeie Notice of HearingVarious Acts.

Original and one for the party to be served.

Varies. There may be instructions from the District Registrar that accompany the notice.

A return of service is usually necessary.

Bill of Costs Original and one for the party being served.

Advice of the date of taxation of the particulars in the Bill.

Where possible personal or as provided in the Rules of Practice.

Complete an affidavit of service and return it to the party requesting service.

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Appendix 8

ADVERTISEMENT

BAILIFF’S SALE

TAKE NOTICE that the goods described in the Schedule, and seized pursuant to Warrant to Sell property No________________, will be offered for sale by public auction at ___(address)_____ on _____(date)______ at ____(time)_____.

(Signed) _________________, Assistant Bailiff.

SCHEDULE

Television, DVD Player, Lounge Suite etc


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Glossary of TermsAct Legislation (laws) duly made and passed by the Tasmanian Parliament.Action A matter in progress in a courtAffidavit A written statement sworn by the maker- the ‘deponent’ before a person who

has authority to administer an oathAssistant Bailiff

A person duly appointed pursuant to Section 15A of the Magistrates Court (Civil Division) Act 1992

Administrator Means the Administrator of the Magistrates Court.Attachment of Salary

Results from an order of the court to attach the salary or wages of a person

Attachment of Debt

Results from an order of the court to attach a debt (sum of money) owing to a Judgment Debtor

Bailiff A person duly appointed pursuant to Section 15 of the Magistrates Court (Civil Division) Act 1992. All police officers are bailiffs by virtue of their position.

Bailiff Expenses

The reasonable expenses incurred in the execution of a warrant or other enforcement process.

Claim The originating document which outlines the substance and amount of the claim made against the defendant by the claimant.

Claimant The person, persons or party who institutes a civil proceeding.Costs Charges incurred for legal representation to pursue or defending a claim. Conduct Money

An amount of money sufficient to enable the Judgment Debtor to attend court to answer a Judgment Summons. Provided by the claimant, accompanies the summons, and is delivered at the time of service.

Default Judgment

A judgment entered because the defendant has not filed a defence, or complied with a specific Court order, within the prescribed time. A District Registrar enters this judgment without the need for any trial by the court.

Defendant A person, persons or company summoned to answer a claim.Defence A written response to a claim, is lodged by a defendant or their agentDistrict Registrar

Means a District Registrar appointed under the Magistrates Court Act 1987, District Registrars are appointed for the four lower Court districts i.e. Hobart, Launceston, Devonport and Burnie.

Execution Debtor

After judgment and during the execution of enforcement proceedings the defendant is often referred to as the execution debtor, or judgment debtor.

Execution The act of carrying into effect a judgment or order which compel a person to do or pay what has been adjudged. (e.g. filing fees)


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Fees Those charges, set by Regulation, as administrative expenses charged by a court and usually added to the costs of an action.

Garnishee The person, employer or other party upon whom an Attachment of Salary or Debt is served binding them to act in the terms of the order.

Gazette Tasmanian Government Gazette. Published weekly by the Printing Authority of Tasmania.

Interpleader Proceedings brought by a bailiff or assistant bailiff to determine who, as between two or more people, is entitled to property which has been levied upon. Occasionally arises when a third party claims to own property that is apparently in the possession of a judgment debtor.

Judgment A declaration, decree, decision or order of the courtJudgment Creditor

The party to whom judgment monies are owed and paid,

Judgment Debtor

The party who is found to owe the judgment monies.

Judgment Summons

A summons issued pursuant to the Debtors Act 1870, for a judgment debtor to attend court and be examined as to their means to pay the judgment debt. See also “Oral Examination”

Levy The imposition of restrictions on dealing with specified property owned by the judgment debtor (defendant) pending payment or further enforcement action.

Magistrates Court

The title of the lower court for the pursuit of civil matters in the State of Tasmania. Where the value of the dispute does not exceed a prescribed value ($20,000 at the time of publishing these Guidelines).

Oral Examination

A method of cross-examining a judgment debtor on oath about his/her/its available financial resources to satisfy the judgment sum. This method relies on the Supreme Court Rules 2000, Part 35. Similar to Judgment Summons.

Party Usually the claimant or defendant in proceedings, and in some instances a third party or solicitor acting on behalf of that party.

Process Documents issued by the District Registrar of the courtProperty Means personal or real (house and land) propertyRegulations Subordinate legislation applicable to an Act of Parliament. Usually covers

procedural /administrative matters.Rules (Statutory)

Subordinate legislation applicable to an Act of Parliament. Usually covers procedural / administrative matters.

Service The action of delivering a document (pursuant to the appropriate rules of court) to the nominated party.

Seizure Removal of goods for intended sale under a warrant to sell property.


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Stay orStay of Execution

An instruction issued by the District Registrar to a bailiff or assistant bailiff requesting they cease any further action on a warrant to sell property. It may also involve the release of any property seized and return of the warrant to the court.

Summons to Witness

Notification to a party to attend as a witness at a court hearing.

Walking Possession

Goods placed on walking possession become the property of the court but are left in the care and control of the judgment debtor for a specified period. There is a form called a Walking Possession see Appendix 6.

Warrant to SellProperty

A document issued by the District Registrar authorising a bailiff, or assistant bailiff, to seize the property of the judgment debtor for sale to recover the judgment debt.


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