Order 13 Division 4 of the National Court Rules 1983 governs what the Sheriff may take and how it is sold.
Rules 27 and 28
27 — in this Division, “sheriff” includes any person to whom a writ is directed, and “writ” means a writ for levy of property.
28 — the writ formerly called a writ of fieri facias shall be called a writ for levy of property and shall be in Form 58.
Not more than one writ shall be issued on a judgement, unless the Court otherwise orders — subject to Rule 22, which permits separate execution for costs where the costs had not become payable when the judgment sum did.
Rule 26 — the amount for which a writ may be issued shall, unless the Court otherwise orders, include the costs of any prior writ of execution on the same judgement, whether the prior writ was or was not productive. So an unsuccessful earlier attempt is not money wasted; its costs are added.
The scope
All property real and personal taken in execution shall be offered for sale by the sheriff by public auction.
| Property | Means |
|---|---|
| Goods, vehicles, plant, stock, equipment | Writ for levy of property — O 13 Div 4 |
| Land and interests in land | Levy; and note that “property real and personal” is offered for sale under r 31(2) |
| Money owed to the debtor — bank accounts, wages, trade debts | Attachment of debts — a different Division |
| Securities and interests | Charging order |
| An income-producing business | Receiver |
| Property in the hands of a receiver or sequestrator | Execution only with leave — O 13 r 18(1)(e) |
The writ reaches the debtor’s property. Where the Sheriff seizes goods a third party says are theirs, that person may give notice of claim in Form 59 to the Sheriff, and the matter is resolved by sheriff’s interpleader under Order 13 Division 5.
Note the incentive to act quickly: under Rule 36(3), a person who does not give notice within a reasonable time after having knowledge of the facts may find the Court restraining or staying any proceedings they later bring against the Sheriff.
Rule 30
(1) Where it appears to the Sheriff that the property subject to levy is more than sufficient to satisfy the money to be levied, he shall first take or realize so much of the property as appears to him to be sufficient.
(2) In doing so, the Sheriff shall take or realise the property —
(a) in such order as seems to him best for the speedy execution of the writ without undue expense; and
(b) subject to (a), in such order as the debtor may direct; and
(c) subject to (a) and (b), such order as seems to the sheriff best for minimizing hardship to the debtor and other persons.
(3) This does not affect any liability of the sheriff to the execution creditor.
Rules 31 to 33
Rule 31(1) — subject to Rule 30, the Sheriff shall put up for sale all property liable to sale under the writ as early as may be with due regard to the interests of the parties and to the avoidance of sacrifice of the reasonable value of the property.
Rule 31(2) — all property real and personal taken in execution shall be offered for sale by public auction.
Rule 32 — the Sheriff shall sell at the place which seems to him best for a beneficial realization of the property.
Rule 33(1) — before putting property up for sale, the Sheriff shall give notice of the time and place of sale and of particulars of the property in the manner which seems to him best to give due publicity to the sale.
Rule 33(2) — unless the Court, on application by the judgement creditor, otherwise directs, a copy of that notice shall be served personally on the judgement debtor in the same manner as a writ of summons is required to be served.
Two safeguards against an under-value sale to a connected buyer. The property must go to public auction, and Rule 31(1) directs the Sheriff to avoid sacrifice of the reasonable value.
And the debtor must be told: notice of the sale is served personally, in the manner required for a writ of summons. That gives the debtor a last opportunity to pay, to direct the order of realisation under Rule 30(2)(b), or to apply for a stay of execution under Rule 21.
Only the judgement creditor may apply to dispense with that notice.
Rules 25 and 34
25 — a person at whose request a writ is issued may deliver a notice to the Sheriff requiring him, within the time specified, to make on the writ a statement of the manner in which he has executed the writ and to send a copy of the statement.
34 — the Sheriff shall give to any party interested an account of all proceeds of sale and other money received by him under a writ and of his charges and the manner of disposal of the money.
Rule 34 says “any party interested” — not merely the execution creditor. A judgment debtor is entitled to an account of what was realised, what the Sheriff’s charges were, and where the money went.
Rule 25 lets the creditor require a formal return on the writ, which is how you learn whether the writ was productive — and note that under Rule 26 the costs of an unproductive writ may be added to a later one.
On the validity of a writ for execution and its extension for periods of not more than 12 months, with priority determined by the date it was originally delivered to the Sheriff, see Rule 24. On the Sheriff generally, see the Sheriff’s role.
Sources
- National Court Rules 1983 — O 13 rr 18, 21, 22, 24–34, Divs 4, 5; Forms 58, 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.