South Australian Current Acts

ENFORCEMENT OF JUDGMENTS ACT 1991 - SECT 7

7—Seizure and sale of property

        (1)         The court may, on application by a judgment creditor, issue a warrant of sale authorising seizure and sale of a judgment debtor's real or personal property (or both) to satisfy a monetary judgment.

        (2)         The seizure and sale of personal property that could not be taken in bankruptcy proceedings against the judgment debtor cannot be authorised.

        (2a)         The sheriff may, on a warrant being issued under this section, by notice in writing served on a judgment debtor, require the judgment debtor to provide to the sheriff such information or documents relating to the interests of third parties in specified real or personal property owned by the judgment debtor as may be specified in the notice.

        (2b)         The sheriff may, on a warrant being issued under this section, by notice in writing served on a person other than a judgment debtor who the sheriff reasonably believes has or may have an interest in real or personal property owned by the judgment debtor, require the person to disclose to the sheriff—

            (a)         the nature of the interest; and

            (b)         if the interest is a security over the property—

                  (i)         the amount secured against the property; and

                  (ii)         the amount outstanding under the security; and

                  (iii)         the amount and rate of interest accruing; and

                  (iv)         any change that occurs to the terms of the security; and

            (c)         the amount of money that is owed to the person in relation to the property; and

            (d)         any other information specified by the sheriff (being information that the sheriff considers relevant to the sheriff's duties and functions under this section).

        (2c)         A notice under this section must comply with any requirements set out in the rules of the relevant court.

        (2d)         A person who refuses or fails to comply with a requirement of a notice under this section is guilty of an offence.

Maximum penalty: $5 000.

        (3)         The sheriff may, in relation to a warrant under this section, do any or all of the following:

            (a)         enter land (using such force as may be necessary for the purpose) on which property to which the warrant relates, or documents evidencing title to such property, is situated;

            (b)         seize and remove such property or documents;

            (c)         retain such property or documents until completion of the sale;

            (d)         sell any property to which the warrant relates (whether or not the sheriff has first taken steps to obtain possession of the property);

            (e)         where the warrant authorises the sale of land—

                  (i)         take such steps as the sheriff considers necessary to prevent persons from entering the land; or

                  (ii)         by notice in writing direct a specified person to leave, or not to enter or attempt to enter, (or both) the land until completion of the sale;

            (f)         if a person refuses to comply with a direction given under paragraph (e)(ii), or a person on the land is behaving in an unlawful manner—

                  (i)         remove the person from the land using such force as is reasonably necessary for the purpose; or

                  (ii)         cause the person to be detained and handed over into the custody of a police officer as soon as reasonably practicable;

            (g)         give such other directions, or exercise such other powers, as may be set out in the rules of the relevant court for the purposes of this paragraph.

        (3a)         The sheriff may, by notice in writing, vary or revoke a direction under subsection (3).

        (3b)         A person who contravenes or fails to comply with a direction under subsection (3) is guilty of an offence.

Maximum penalty: $5 000.

        (4)         The sheriff may, in appropriate cases, leave a judgment debtor in possession of property until it is sold in pursuance of the warrant.

        (5)         Subject to any contrary direction by the court—

            (a)         the sale of real property or tangible personal property will be by public auction (but if no bid that the sheriff considers acceptable is made at auction, the sheriff may proceed to sell the property by private treaty for a price not less than the highest bid);

            (b)         if there is a reasonable possibility of satisfying the judgment debt out of personal property, the sheriff should sell personal property before proceeding to sell real property.

        (6)         Where any part of the judgment debtor's property consists of intangible property, the sheriff may sign any transfer or do anything else necessary to convert that property into money.

        (7)         Where property of the judgment debtor seized in pursuance of the warrant consists of a bank note or other money, the sheriff must, unless it has a value greater than its face value, hand it over to the judgment creditor in full or partial satisfaction of the judgment.