Seizure & sale of personal property

If a seven day notice has been personally served on your client, then during the seven day notice period, a person authorised to execute the warrant may only seize and remove personal property from your client’s residential or business property if a demand for the amount under the warrant has been made and the authorised officer believes that removal is necessary to avoid the property from being disposed of or removed (s 120(1) of the Fines Reform Act 2014 (Vic) (FRA)). If property is removed, a written statement of reasons for removing the property must be given to the Director of Fines Victoria and the registrar (s 120(3) of the FRA).

Upon the expiry of the seven day notice and after a demand for payment of the outstanding amount has been made (s 121(1) of the FRA), if the fine or part of the fine remains unpaid, the sheriff or a police officer may:

• break, enter and search any residential or business property occupied by your client for their personal property;
• seize the personal property of your client; and
• sell the personal property at a public auction to pay off the outstanding fine together with the costs of execution (s 109 of the FRA).

The sheriff has the power to physically restrain anyone who tries to stop them enforcing the warrant until such time as the activity that the person was hindering is completed pursuant to s 16 of the Sheriff’s Act 2009 (Vic).

A sheriff or other authorised person cannot take any steps to execute an enforcement warrant if the client:

• has made the first payment under a payment arrangement;
• has not rejected a proposed payment arrangement under section 45(5);
• has applied for a payment arrangement which has not been determined;
• has applied for an enforcement review which has not been determined;
• is the subject of an application for a work and development permit which has not been determined;
• has applied for an attachment of earnings or attachment of debts direction which has not been determined; or
• is the subject of an undetermined FVS application (see ss 10S and 121(2) of the FRA).

Homeless Law clients do not generally have sufficient personal property to cover the costs of the infringement warrants and execution costs, which means that they may risk being arrested.

It is important to note that the person executing the warrant is not required to break and enter into a property for the purpose of finding and seizing personal property or before making an arrest under the FRA (see s 109(3) of the FRA). If your client is at the property at the time the sheriff or police officer arrives, they are likely to seek your client’s consent to enter the property. If the sheriff or police unnecessarily break and enter into property and cause damage, it is theoretically possible that the client may be able to seek damages in an action in tort in the Civil Division of the Magistrates Court.

What property is allowed to be seized and sold?

A person executing an enforcement warrant is explicitly exempt from the usual rules under s 42 of the Supreme Court Act 1958 (Vic) which relates to certain property that can be kept by a bankrupt for use in earning income. See ss 123(2) and 136 of the FRA.

What happens if your client’s property is seized?

If your client has had their personal property seized (but not removed from your client’s premises), the person executing the warrant may serve on your client or the person who is in possession of the personal property a notice of seizure of property informing that person that they are:

• responsible for the safe-keeping of the property; and
• cannot without the written consent of the sheriff:
  • interfere with or dispose of that property; or
  • deface or remove any mark attached to that property indicating that it had been seized;
  • remove that property from the place at which it was situated when the notice was served (see s 118 of the FRA).

The penalty for not complying with this notice is 25 penalty units or 6 months imprisonment or both and possibly contempt of court charges (see s 118 of the FRA).

If your client has had his or her property seized but the person executing the warrant has not yet sold it, your client has extremely limited options.

Stay on enforcement warrant

Your client may apply to have the enforcement warrant stayed on the basis of one of the following circumstances:

• a payment arrangement has been made; or
• an attachment of earnings or debts direction has been made; or
• a work and development permit has been approved (see s 125 of the FRA).

However, the enforcement warrant which is stayed will remain enforceable until the Director of Fines Victoria applies for the enforcement warrant to be recalled and cancelled under s 108 of the FRA following either:

• compliance by the fine defaulter with a payment arrangement, an attachment of earnings or attachment of debts direction; or
• completion by the fine defaulter of a work and development permit (see s 125 of the FRA).

In practice, it is unlikely these options will be satisfied quickly enough to prevent the sale or your client’s property under the enforcement warrant. In addition, the stay will cease and the warrant will become enforceable again if the client fails to comply with the payment arrangement or attachment of earnings or debt direction or the work and development permit is cancelled (see s 125 of the FRA).

Payment in full

Alternatively, if a stay is unavailable, then to prevent the sale of your client’s property your client will need to pay the outstanding amounts in full (prior to the auction) or your client’s property will legally be able to be sold.

Your client or you, on behalf of your client, may be able to negotiate with the sheriff or person authorised to execute the warrant to delay selling the property for a period of time until your client has enough money to pay in full but once the seven day notice period has expired, your client’s property can be legally sold.

What happens if your client’s property is sold?

If your client’s property is sold, then there is nothing that your client can do to reclaim their property (other than to try to purchase it from the third party who bought it).

The proceeds of sale must be applied towards the outstanding infringement warrants (together with the lawful costs of execution). Any amount remaining must be applied to satisfy any other unexecuted infringement warrant (regardless of when it was issued) and then can be paid to your client (s 123(4) of the FRA).