Infringements

Infringements

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Seizure and 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 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 (section 89).  If property is removed, a written statement of reasons for removing the property must be given to your client and the Infringements Registrar (section 89(3)). 

Upon the expiry of the seven day notice and after a demand for payment of the outstanding amount has been made (section 90), if the fine or part of the fine remains unpaid, the sheriff or other authorised person (such as a police officer) may:

  • break, enter and search any residential or business property occupied by your client for his or her 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 (section 82).

The sheriff has the power to physically restrain anyone who tries to stop them enforcing the warrant (section 16 of the Sheriff's Act 2009).

If your client has made an application for revocation or payment order but has not yet been determined, the sheriff or other authorised person cannot take any steps to execute the warrant (section 90).

Homeless Law clients do not generally have sufficient personal property to cover the costs of the infringement warrant 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 Infringements Act (section 82(2)) and if your client is at the property at the time the sheriff or police officer arrives, he or she is likely to seek your client's consent to enter the property. 

What property is allowed to be seized and sold?

A person executing the warrant is not able to seize your client's necessary household property and certain personal property (section 42 of the Supreme Court Act 1958 and section 116 of the Bankruptcy Act 1966).

Necessary household property

Necessary household property means household property (including recreational and sports equipment) that is reasonably necessary for the domestic use of the person's household, having regard to current social standards (regulation 6.03 of the Bankruptcy Regulations 1966). 

In particular, this includes the following property:

  • kitchen equipment, cutlery, crockery, foodstuffs, heating equipment, cooling equipment, fire detectors and extinguishers, anti‑burglar devices;
  • sufficient household furniture (such as a lounge suite and dining table and chairs);
  • sufficient beds for the members of the household and bedding, linen and towels; and
  • educational, sporting or recreational items (including books) that are wholly or mainly for the use of children or students in the household;
  • a television;
  • stereo equipment;
  • a radio;
  • a washing machine and clothes drier (or a combined washing machine and clothes drier);
  • a refrigerator and freezer (or a combined refrigerator/freezer);
  • a generator, if relied on to supply electrical power to the household;
  • a telephone; and
  • a video recorder.

In order to decide if any other property falls under this definition, the person executing the warrant must take into account:

  • the number and ages of members of your client's household;
  • any special health or medical needs of any of those members;
  • any special climatic or other factors (including geographical isolation) of the place where the household residence is located;
  • whether the property is reasonably necessary for the functioning or servicing of the household as a viable and properly run household;
  • whether the costs of seizure, storage and sale of the property would be likely to exceed the sale price of the property;
  • where the costs of seizure, storage and sale of the property would not be likely to exceed the sale price of the property, whether for any other reason (for example, costs of transport) the sale of the property would be likely to be uneconomical.

Personal property

A person executing a warrant is also not able to seize:

Your client does have the option to sign a written consent form to allow the person executing the warrant to take his or her primary means of transport where it is worth $7,600* or less (section 93).

*These figures are current as at 1 July 2015. These amounts change with the Consumer Price Index (CPI) each financial year.  For the current figures please view Indexed Amounts.

What happens if your client's property is seized?

If your client has had his or her 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 he or she:

  • is 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.

If your client does not sign the notice, the person executing the warrant will remove the property.  

The penalty for not complying with this notice is 25 penalty units or 6 months imprisonment or both and possibly contempt of court charges (section 87).

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.  Either your client:

  • pays the outstanding amounts in full (until prior to the auction); or
  • your client's property is 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 his or her 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 (section 93(4)).

What if there is a dispute about the ownership of an item?

If the person executing the warrant intends to seize an item and your client denies full ownership of that item, your client can make a third party claim.  A third party claim does not prevent the person executing a warrant from forming a "reasonable belief" that your client owns the property and seizing it, however, your client may request a third party claim form to be given to him or her or directly to the third party. 

The third party must complete the third party claim form and provide copies of supporting evidence, such as receipts in the third party's name or Statutory Declarations from people attesting to the ownership of the property.  If the dispute persists, an Interpleader Summons will be issued so that the ownership or interests in the property can be resolved in court.