Responding to enforcement

The examination notice is a form that is posted to you. The form has questions about your income, assets and debts. If you receive an examination notice from the judgment creditor, they must give you at least 28 days to answer all the questions and send the form back.

To respond to the examination notice you should:

• ​fill out the financial statement section at the end of examination notice
  
• make copies of the documents that you have been asked to produce and attach them to the examination notice
  
• sign the examination notice
  
• send the signed examination notice and the copies of documents to the other party's address for service by the date listed.
  

Instructions: Instructions for completing an examination notice- defendant

Sample:  ​Sample completed examination notice – defendant

If you ignore the examination notice, don't fill it out properly or don't provide all the documents, the other party can apply for an examination order. If you get an examination order you have to go to court and answer questions about your income, assets, debts and employment. This is called 'examination'.

If you are served with an examination order you will need to:

• attend court on the date in the examination order
  
• answer questions from the other party at court
  
• bring copies of the documents listed in the examination order.
  

The examination is an informal process. You and the other party will sit together whilst the other party asks you some questions about your financial circumstances and asks to look at the documents listed in the order.

If you try and hide information or refuse to answer questions, the judgment creditor may ask for an adjournment and for the registrar to order you to produce certain documents.

If you have been properly served with an examination order and do not attend at the listed time and date, the court can either adjourn (postpone) the examination until a later date or issue a warrant for your arrest.

Usually, the court will write to you and give you 14 days to pay the debt or go to court for examination. If you do not go to court, the court may issue a warrant for your arrest.

The court may also order that you pay the other party the costs of the examination order, for attendance at the examination and for the issue of the arrest warrant, all in addition to the judgment debt.

If you want to negotiate with the other party see Negotiating after judgment in After court. 

The other party can ask the court to issue a writ for the levy of property. After the court issues a writ for the levy of property, the court will send a copy of the writ to the nearest sheriff's office. Soon after a sheriff will come to your house.  

For some people, the first time they find out there is a court claim against them is when the sheriff comes to their home. If you have never received any court papers before, or you don't know why the sheriff has come to enforce a judgment debt, you should call the courts call centre on 1300 679 272 to get a copy of the statement of claim. 

If you don't agree that you owe the judgment debt, you can apply to have the judgment set aside. For more information, see Step by step guide - Setting aside the default judgment.

If you agree that you owe the money you can pay the debt in full or you can apply to pay the judgment debt by instalments to stop the enforcement. For more information see Paying the claim.

The sheriff will make a list of items and tag them. The sheriff should give you a notice, which includes the list of items seized. The sheriff usually doesn't take these tagged items straight away so you have a chance to do something to stop the sale of your items. However, the sheriff is now the lawful owner of the tagged goods. It is a criminal offence to get rid of them or damage them. 

If you do nothing about the judgment debt, the sheriff will return and remove the tagged property to sell it. 

The sheriff will hold an auction to sell the tagged property and must take steps to make sure they get a fair price for the items they are selling.

After the auction, the amount made in the sale will be paid towards the judgment debt and the sheriff's costs. If the amount made doesn't cover both, the sheriff will come back to your home and seize more items to sell until you have paid back the full amount owed. If there is any money left after the sale of your property, this money must be returned to you. 

If you want to get legal advice, you should let the sheriff know. They may delay taking immediate action if they know you intend to get legal advice​.

The sheriff may take your personal property except essential household items and other items that are protected by bankruptcy laws. For example, the sheriff can’t take:

• kitchen items like cutlery, heating and cooling equipment
  
• toiletries like towels, brush and razor
  
• sufficient furniture and beds
  
• educational and sports items for children or students in the home
  
• at least one television set, stereo equipment, radio, video recorder
  
• a washing machine and clothes drier
  
• a refrigerator and freezer
  
• safety equipment like fire detectors and extinguishers.
  

The sheriff also can’t take tools you need to earn an income and motor vehicles you need for transport unless it is above the limit set by bankruptcy laws. This limit is called the 'indexed amount'. The indexed amount changes every financial year and it is currently (as at 1 July 2023):

• $4,200 for tools
  
• $9,100 for motor vehicles.
  

The indexed amount for motor vehicles is not the total value of the vehicles. The amount is the total value of the vehicles minus the sum that you owe under finance. For more information, see Indexed amounts on the Australian Financial Security Authority website.

In the Small Claims Division of the local court, a judgment creditor can only apply for a writ for the levy of property against personal property and not land.

When the sheriff tags property, they will give you a notice to the custodian, which is a list of all the tagged items. 

If the sheriff tags items that don't belong to you, tell the sheriff that they are not your property. The owner of the item needs to take action as soon as possible and should get legal advice​. 

Even if someone other than you owns the tagged items, they can't take the items from your home. Moving, taking or selling tagged items can result in a criminal conviction and a fine of up to $5,500. 

You will notice that the amount owed will keep increasing depending on how far the sheriff has gone to try to sell your personal property.  

When the sheriff first seizes your property, you will usually owe:

• ​the judgment debt amount
  
• any court and enforcement costs the other party has paid from the time of the judgment to the time of enforcement 
  
• the sheriff's levy of 3% of the amount owed. 
  

​If the sheriff removes the tagged items from your home and starts preparing for the auction, the amount you owe will increase to cover the sheriff's costs for doing these things. 

To try and stop your property being taken and sold you can: 

Apply to the court for a stay of enforcement 

If you need some time to borrow money or sell property to pay the judgment debt, you can apply to the court for a temporary order stopping the sheriff taking your property. This is called applying for a stay of enforcement, or a stay of proceedings. For more information see Step by step guide - Stay of enforcement.

Pay the judgment debt

You can pay the debt by giving the sheriff or the other party the amount of the writ in full including any court costs or fees. For more information, see  Paying the claim.  If you can’t pay this amount in full, you could try to come to an arrangement with the other party as to how it will be paid.  For more information see, Negotiating after the judgment in After court​. 

Apply to the court to pay by instalments

The first time you apply to the court to pay the judgment debt by instalments, all enforcement action, including selling your property under a writ for levy of property, will automatically stop.  If you are making a second or later application to pay by instalments, you will also need to apply for a stay of enforcement to stop the sheriff from selling your property.  For more information, see Step by step guide - Application to pay by instalments. 

Apply to the court to set aside default judgment

If you did not file a defence and the other party got a default judgment against you, you can apply to the court to set aside the default judgment. In your application, you will need to explain to the court ​why you did not file a defence within 28 days of receiving the statement of claim and what your defence is to the claim.  For more information, see  Step by step guide - Setting aside the default judgment.

The other party can ask the court to issue a writ for delivery of goods. After the court issues the writ, it is sent to the sheriff's office. The sheriff may either come to your property to seize (take) the goods, or contact you first to provide you with the opportunity to get legal advice. 

For some people, the first time they find out there is a court claim against them is when the sheriff comes to their home. If you have never received any court papers, or you don't know why the sheriff has come to take goods, you should call the courts call centre on 1300 679 272 and ask for a copy of the statement of claim. 

The writ may also include an order that the sheriff seize other goods that belong to you in order to pay for legal costs, for the replacement value of goods, or damages. This is called a 'writ for the levy of property'. 

You may notice that the amount owed increases depending on how far the sheriff has gone to try to seize and deliver the goods. 

When the sheriff first seizes the goods, you may also owe money for: 

• ​any judgment amount for costs, interest, damages or compensation awarded
  
• court and enforcement costs the other party has paid from the time of the judgment to the time of enforcement.  
  

The sheriff may also seize other property belonging to you, to be sold to pay for the money owing. 

The sheriff will charge the other party each time the sheriff tries to execute the Writ and this will be added to the money you owe the other party.

If the sheriff comes to your home or contacts you, they may give you an opportunity to try and stop the goods being taken. You can consider these options:

Return the goods as ordered in the judgment 

You can make arrangements with the other party to return the goods to them. It's best to personally deliver the goods to the other party so that you can be sure they receive them, rather than simply leaving them at an agreed location.

Negotiate with the other party 

The other party can tell the sheriff not to proceed with enforcement if you and the other party come to an agreement. The other party may stop the enforcement if you :

• ​return the goods and pay their costs or 
  
• offer to pay an amount of money that compensates them for the loss of the goods, and possibly their costs as well. 
  

For more information, see Negotiating after judgment in After court​. 

Apply to set aside default judgment: 

If you did not file a defence and the other party got a default judgment against you, you can apply to the court to set aside the default judgment. In your application, you will need to explain to the court: 

• ​​​​why you did not file a defence within 28 days of receiving the statement of claim and
  
• what your defence is to the claim. 
  

For more information, see Step by step guide -  Setting aside the default judgment.

Applying for a stay of enforcement 

If you need some time to make the goods available or to pay compensation, damages or costs, you can apply to the court for a temporary order stopping the sheriff taking your property. This is called applying for a stay of enforcement.

For more information, see Step by step guide - Stay of enforcement.

 If you no longer have the goods or they have been damaged or destroyed, you should get legal advice​.