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Legislative Assembly for the ACT: 1997 Week 13 Hansard (4 December) . . Page.. 4540 ..

MR HUMPHRIES (continuing):

The Magistrates Court (Civil Jurisdiction) Act 1982 already allows the Magistrates Court to make an order allowing a bailiff to make a forced entry to premises to seize property where the judgment debtor has refused entry or cannot be contacted.

The Bill will allow the court to make an order to force entry only in specific circumstances. The sheriff must first either have been refused entry by the judgment debtor or other occupier after having informed or made reasonable attempts to inform the debtor or occupier of the procedure in relation to execution and the sheriff's intention to seek an order if entry is refused, or have been unable to contact the debtor or occupier to obtain consent after having made reasonable attempts to make contact. On application by the sheriff, the court will be able to make an order if satisfied that the judgment debtor resides at the premises, or there is property on the premises that the sheriff is entitled to seize, or that the sheriff is entitled to sell the premises themselves in execution of the judgment.

The Bill will provide for the sheriff to enter premises using whatever force is necessary and reasonable, with the assistance of police if necessary, and will provide an immunity for acts done or omitted to be done in good faith in carrying out an order. At present, in contrast to a bailiff, the sheriff has no power to make a forced entry of a judgment debtor's residential premises, although the sheriff can make a forced entry of non-residential premises. This Bill will correct that anomaly but will also require the sheriff to seek an order of the court in order to make a forced entry of non-residential premises occupied by a judgment debtor.

Providing for a forced entry of residential premises to seize property may also assist in avoiding what is a most undesirable circumstance - that of a judgment debtor having his or her house sold in order to satisfy a judgment debt. Members will remember an unfortunate incident at the end of last year when a house was sold under a writ of venditioni exponas for a sum considerably less than its real value. While there is no suggestion that allowing the sheriff to make a forced entry to seize property in that case would have made any difference to the outcome, it may be that, in other cases, a forced entry would permit personal property to be seized and sold without the need for the sale of any interest in land.

I should stress, however, that, even with the capacity to order a forced entry to seize personal property to satisfy a judgment debt, there will always be cases where the sale of an interest in land is the only possible result. The court, after all, must be able to enforce its judgments and a creditor is entitled to satisfaction. However, allowing the court also to order a forced entry for the purposes of the sale of the premises may result in a better price being obtained at the sale. I commend the Bill to the house.

Debate (on motion by Mr Wood) adjourned.

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