A bailiff executes the warrant by taking possession of (seizing) the debtor’s goods and selling them. Seizure gives the bailiff what is called ‘special property in the goods’, and the creditor the right to have them sold for his benefit, although legal title remains in the debtor until they are sold. The goods can be seized without actually packing them up and taking them away. An indication of an intention to take possession, often by placing a mark on the goods is sufficient.

Often it is convenient to leave the goods at the debtor’s house while a sale is arranged. In such cases the bailiff will take notional possession, called ‘walking possession’. This is done by obtaining the agreement of the debtor not to remove the goods, and a written undertaking to that effect. Although seizure of property is made under all the warrants in the possession of the bailiff, they are satisfied in the order in which they were delivered to the bailiff.

What Property Can be Seized?

The bailiff can seize personal property such as money, furniture, a TV or radio, electrical appliances or a car, as well as ‘choses in action’ such as cheques, promissory notes and such like. The property seized must belong to the debtor. Anything on hire purchase, anything rented (for example a TV) and anything belonging to anyone else, such as the debtor’s spouse or other relatives, cannot be taken.

The debtor’s house or land can also be seized but only if there is insufficient personal property to satisfy the judgment and costs of execution. Where land is to be seized the warrant has to be registered under section 61 of the Land Titles Act 1980 (Tas) before it can be sold.

Examples of Property that Cannot be Seized

When executing a warrant of execution issued out of the Magistrates Court the bailiff cannot take any clothes or bedding, even if they belong to the debtor, if they are being used by the debtor or a member of the debtor’s family. Nor can the bailiff take the debtor’s tools or implements used by the debtor in his or her trade up to a value of $3000 (Rule 131Magistrates Court (Civil Division) Rules 1998 (Tas)) A bailiff must wait 7 days from the date of seizure before offering the property for sale (Rule 132, Magistrates Court (Civil Division) Rules). The delay is to give the debtor an opportunity to apply to the court for the restoration of the goods to him or her. If the effect of taking the goods would be to deprive the debtor, or any essential requirements of living for the maintenance of health, the court may order that they be restored to the debtor; otherwise it can give leave for the execution to proceed in respect of those goods (Rule 133, Magistrates Court (Civil Division) Rules).

  • A judgment debtor drives a new car. If the debtor has finished paying off the car and so owns the car in law, the bailiff can seize it under the warrant. Where the car is still on hire-purchase, however, the bailiff cannot take it, though he may levy on the debtor’s interest in it if the hire purchase agreement does not provide that the debtor’s interest becomes terminable if execution is levied.
  • The judgment debtor’s lounge room is furnished with a lounge suite but the suite came with the house when it was rented and belongs to the landlord. The bailiff cannot take it.
  • A judgment debtor has borrowed a washing machine. The bailiff cannot seize the washing machine. 
  • The judgment debtor owns a sewing machine which is used in his or her business as a home-dressmaker. The bailiff may not be able to seize the sewing machine, depending on the value of the sewing machine (see Rule 131, Magistrates Court (Civil Division) Rules).

The Powers of the Bailiff

The bailiff cannot forcibly enter the debtor’s house by, for example breaking a lock, but can enter if all he or she has to do is open an unlocked door. The debtor can refuse entry and is entitled to use reasonable force to stop the bailiff getting in. This only extends to the outer door of a dwelling house; once inside he may break open inner doors. Furthermore it gives no protection against forcible entry of a bailiff into other buildings on the debtor’s property that are not physically connected to the dwelling house (for example, a barn or garage), or other buildings such as a shop used only as a place of business.

The bailiff may also enter the house of a stranger to execute the warrant, but does so at his own risk. If the goods of the debtor are not there the bailiff is a trespasser and liable to an action. It seems the bailiff may also break in if the debtor’s goods were taken there to avoid a lawful execution.

Lawful and Unlawful Execution

It is important to remember that even if execution is made following an illegal entry, the validity of the execution is not affected. The debtor’s only remedy would lie in an action against the bailiff for trespass. Fortunately bailiffs rarely exceed their powers as they are reluctant to behave in a manner for which they would be personally liable.

After the bailiff has been let in and has seized goods, he can forcibly re-enter the second time to take them away. He may also, if necessary, break open a door in order to carry away goods that have been seized.

If the debtor has no property which can be seized, or insufficient property to pay the debt, the creditor will be so advised. As the writ may be in force for 12 months from the date of issue, the creditor can apply to the registrar who issued the warrant to have it sent back to the bailiff for another attempt at execution, that is, at getting more goods or money to pay the debt in full. The creditor may also decide to try other enforcement procedures, such as garnishment or a judgment summons if the writ is returned unsatisfied.

Compared to the number of warrants issued, it is not common for goods to be seized and sold under a warrant. Often, where the debtor has no property which can be taken and the bailiff is reluctant to take household goods, the debtor and creditor come to some arrangement.

If property is seized it must be advertised for sale in a local newspaper not less than 3 days before the sale is held, (Rule 132, Magistrates Court (Civil Division) Rules). The sale may be conducted at the debtor’s house. Sale proceeds of goods seized will often be far less than the value of the goods to the debtor or their replacement value. For this reason the debtor should avoid such sales, for example, by making an arrangement with the creditor before matters reach that stage, if possible.

Lawful Entry

Bailiff B is refused entry into D’s house. B surveys the premises and discovers a garage in D’s backyard, about 5 meters from the rear of the house. The door of the garage door is locked, so B breaks it down, enters the garage and executes the judgment debt on D’s car and other items of value. 

Unlawful Entry

Bailiff B, on being refused entry into D’s house, breaks open the garage door and executes the judgment debt on D’s boat. The garage and the dwelling house share a common wall and are thus physically connected.

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