Writs for the Levy of Property for Debt Recovery12 March 2022 in Debt Recovery
Creditors who are pursuing a debt should be aware of the variety of court orders which may be used to enforce a judgment debt. One of these is a writ for levy of property. This article explains this legal mechanism.
The Debt Recovery Process
Common steps in debt recovery are:
- A creditor first attempts to privately negotiate the payment of a debt that they are owed from a debtor informally. This may be done through a conversation, emails or telephone calls.
- If informal recovery of the debt is unsuccessful, debtors can contact a lawyer. A lawyer can draft a letter of demand which is a formal request to made on the creditor’s behalf that a debtor pay the debt. The debt recovery lawyers at Brander Smith McKnight recover over 75% of debts with a simple letter of demand. A letter of demand clearly indicates to the debtor that if they fail to pay the debt owed, legal action will be taken
- Where a letter of demand is unsuccessful and the creditor is unable to recover the debt, the creditor’s lawyer may commence legal proceedings against the creditor with a statement of claim. A statement of claim is the document which commences legal proceedings. It is a concise document setting out the legal cause of action and the essential facts of the case. Upon receiving the statement of claim, the defendant has 28 days to draft, file and serve a defence. In some instances the defendant fails or refuses to file a defence within the 28 days. In which case your lawyer can file a judgment for a default judgement against the defendant.
- If the matter proceeds to a hearing, the relevant court will then provide a decision regarding the debt owed to the creditor. If the court rules in favour of the creditor, they will be awarded a judgement debt for the amount decided by the court.
- If the debtor fails to pay the amount prescribed by the judgement debt, the creditor can apply to enforce the judgment debt using enforcement methods such as garnishee order, writ for levy of property, bankruptcy or insolvency.
It is important to note that there are other means of recovering a debt via alternative dispute resolution methods. The lawyers at Brander Smith McKnight will actively pursue these methods in an attempt to save you legal fees.
Writs for the Levy of Property
Writs for the levy of property are amongst the various options through which to enforce a judgement debt outlined within the Civil Procedure Act 2005 (NSW). A writ for the levy of property basically allows the sheriff to take control and sell the creditor’s property for the purposes of paying the creditor’s debt. The types of property that can be subject to a writ for the levy of property include the creditor’s goods, money, land, equitable interests and choses in action. Creditors should be advised that writs for the levy of property can be pursued in conjunction with other orders under the Civil Procedure act such as garnishee orders.
The debt recovery lawyers at Brander Smith McKnight are experts in this area and can assist creditors in completing and filing the forms required in order to pursue a writ for the levy of property.
What is an Equitable Interest?
This is an interest that is both enforced and created by equity. An equitable interest is also commonly referred to as a beneficial interest. This is because an equitable interest is established for the purpose of deriving some form of benefit. For example, beneficiaries of a trust have an equitable rather than a proprietary interest in property which is managed by the trust’s trustee. Equitable interests can be subject to a writ for the levy of property.
What is a Chose in Action?
In simple terms, a chose in action is a legal term which refers to property rights over intangible things. For example a chose in action may be in relation to things such as intellectual property or shares in a company. Choses in action can be subject to a writ for the levy of property.
Why BSM Lawyers?
Our debt recovery lawyers are highly experienced and have a high level of success in debt recovery. Over 75% of debts can be recovered with a simple and inexpensive letter of demand. However, if despite using alternative dispute resolution the debtor needs to be pursued through the courts we are able to effectively advocate for you and achieve a judgment debt. If the debtor fails to pay this court ordered debt, enforcement methods such as garnishee orders, bankruptcy, insolvency or a writ for levy of property will be applied for by the lawyers at Brander Smith McKnight
Call us to arrange a free 20 minute no obligation consultation that includes case evaluation and cost estimate.
We are conveniently located with offices in Sutherland, Parramatta, Wollongong and Sydney CBD