The warrant cannot be enforced if the debtor owns no goods (for example, if everything is on hire purchase or owned by the debtor’s spouse) or land. Again the warrant cannot be enforced if the debtor does not let the bailiff into the house. If the debtor refuses to let the bailiff in, it should be done politely so as not to assault or obstruct him in the performance of his duties, as it is contempt of court to do so . If the bailiff is not allowed in to execute (that is, carry out the order), the creditor may use other means of enforcement, for example, wages garnishment.

A debtor who either does not owe the money, or believes that the amount is wrong, should ask the bailiff to delay a few days while the debtor contacts the creditor to check the facts. If the bailiff or creditor will not co-operate the debtor may be able to apply to the court for a stay of enforcement and an order setting aside the judgment. As soon as an application to set aside the default judgment is made the court will usually (or the debtor can) advise the bailiff of this fact. The bailiff is usually informed that they can still take goods but, that if the judgment is successfully set aside, they will have to return them. In this case, the bailiff will usually wait until the application has been decided to levy on or seize any goods.

Where the debtor does owe the amount claimed, she or he should immediately seek to make a repayment arrangement with the creditor in return for the staying of the warrant. Informal offers to the creditor to pay the debt in installments do not prevent the bailiff seizing the debtor’s property unless the offer has been accepted and the warrant stayed.

If the bailiff wishes to seize property that does not belong to the debtor the following steps should be taken.

  • The debtor and/or the owner (if present) should immediately insist to the bailiff that the goods are not owned by the debtor.
  • Any documents or receipts showing title should be shown to the bailiff.
  • It would appear that, in certain cases, if the bailiff seizes goods which do not belong to the debtor, the bailiff will be liable to pay the owner damages for interfering with goods. An action could be taken against the bailiff for trespass to goods and conversion. Mention this to the bailiff – it might persuade him or her not to seize the goods in dispute.
  • If the bailiff insists on seizing the goods, there is a special procedure called an ‘interpleader’ in which a court decides whether the person who claims to be the owner is in fact the owner of the goods in dispute. The procedure is set out in rule 137 of the Magistrates Court (Civil Division) Rules 1998 (Tas). To start the procedure, the owner of the goods (claimant) should advise the plaintiff, preferably in writing, of his claim to the goods. If the creditor does not accept the claim, the bailiff will then invoke the interpleader process. Usually the claimant will be required to appear and make his or her claim before the court, which will then resolve the competing claims.

© 2013 Hobart Community Legal ServiceFeedbackDisclaimer