The Sheriff seizes goods under a writ. A third party says the goods are theirs, not the judgment debtor’s. Order 13 Division 5 of the National Court Rules 1983 resolves the impasse.
Rule 35
“claimant” means a person making a claim to property in dispute.
“execution creditor” means a person on whose behalf process is issued.
“process” means process for execution issued by or under the authority of the Court.
“property in dispute” means any debt or property which is the subject of proceedings under this Division.
“sheriff” includes any officer charged with the execution of process.
Stakeholder’s interpleader under Order 14 Division 7 is for a person holding property claimed by two others — a bank, a warehouse. Order 13 Rule 52(a) expressly excludes the Sheriff from that Division, because the Sheriff has this one.
The definitions in Rule 35 are identical to those in Order 14 Rule 51, and under Rule 40(1), Order 14 Division 7 shall apply, with the necessary modifications, to an interpleader under this Division as it applies to a stakeholder’s interpleader.
Rule 36 — notice in Form 59
(1) Where the Sheriff takes or intends to take any personal property in execution, a person making a claim to or in respect of the property or the proceeds or value of the property may give notice in Form 59 of his claim to the sheriff.
(2) The notice shall — (a) specify the claim; (b) state the name and place of abode of the claimant; (c) state an address for service; and (d) be accompanied by a copy of the notice.
Where a person entitled to give notice does not, within a reasonable time after having knowledge of the facts, give notice, the Court may, on application by the Sheriff, restrain the commencement or stay or restrain the continuance by that person of proceedings in any court against the Sheriff for or in respect of anything done by the Sheriff in execution of the process after the time when that person might reasonably have given notice.
So a claimant who sits on their rights and then sues the Sheriff for conversion may find those proceedings stayed. The remedy is to give notice promptly, in Form 59.
Note that the notice may be given where the Sheriff takes or intends to take the property — so a person who learns a seizure is coming need not wait for it.
Rules 37 and 38
(1) The Sheriff shall, on being given notice of claim, serve the notice on the execution creditor.
(2) The execution creditor may serve on the sheriff notice that he admits the claim.
Where the execution creditor admits the claim —
(a) he shall not be liable to the sheriff for any fees or expenses incurred under the process after the notice is given;
(b) the sheriff shall withdraw from possession of the property claimed; and
(c) the Court may, on application by the Sheriff, restrain the commencement or stay or restrain the continuance by the person whose claim is admitted of proceedings in any Court against the sheriff for anything done in execution.
Rule 39 — four days
(1) Where the Sheriff has served a notice of claim on the execution creditor and the execution creditor does not, within four days after service, serve on the sheriff notice that he admits the claim, and the claim has not been withdrawn, the Court may, on application by the sheriff, grant relief by way of interpleader.
(2) The application shall be by motion in the proceedings in which the process is issued.
(3) The Sheriff shall serve notice of the motion on each party to the proceedings who claims any interest in the property in dispute and on each claimant.
Silence for four days is not an admission — it is what entitles the Sheriff to go to Court. An execution creditor who intends to contest the claim need do nothing; one who accepts it should serve notice within four days to obtain the Rule 38 benefits.
Rule 40
(1) Order 14 Division 7 shall apply, with the necessary modifications, to an interpleader under this Division as it applies to a stakeholder’s interpleader.
(2) Where the Sheriff applies, the Court may require the sheriff to satisfy the Court on the matters mentioned in Order 14 Rule 57(1), and may, if not satisfied on those matters, dismiss the application.
Order 14 Rule 57(1) requires the Court to be satisfied that the applicant claims no interest in the property in dispute except for charges or costs and does not collude with any claimant.
Applied to the Sheriff, that is unproblematic in the ordinary case: the Sheriff’s only interest is in fees and poundage, which the exception preserves. But the Court may require the point to be established, and may dismiss the application if it is not.
Through Rule 40(1), the Court then has the full range of Order 14 Rule 55 powers — including ordering the property into Court, summarily determining questions of fact or law, ordering the sale of the property where a claimant claims by way of security, and directing such judgment as the nature of the case requires. And under Order 14 Rule 56, a claimant given due notice who does not appear, or does not comply with an order, may be barred from prosecuting his claim.
For each of the three parties
The claimant: give notice in Form 59 at once — specifying the claim, your name and place of abode, and an address for service, with a copy. Delay risks the Rule 36(3) restraint. Be ready to prove ownership with documents.
The execution creditor: decide within four days. Admitting stops fees and releases the goods; contesting means the Sheriff will apply for interpleader relief and the claim will be determined.
The Sheriff: serve the notice on the execution creditor; wait four days; then move by motion in the proceedings in which the process issued, serving every party claiming an interest and every claimant. Be prepared to satisfy the Court on neutrality under Order 14 Rule 57(1).
Sources
- National Court Rules 1983 — O 13 rr 35–40, 42, 45, 52, Divs 4–6; O 14 rr 51–60, Div 7; Form 59
Before relying on anything here, read the current text of the National Court Rules 1983 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.