Western Australian Current Acts

[Index] [Table] [Search] [Search this Act] [Notes] [Noteup] [Previous] [Next] [Download] [Help]

TRANSFER OF LAND ACT 1893 - SECT 133

133 .         Property (seizure and sale) order, registration of etc.

        (1)         In this section —

        lodged means presented to the Registrar for registration;

        property (seizure and sale) order means a property (seizure and sale) order issued by a court under the Civil Judgments Enforcement Act 2004 ;

        register includes to give effect to;

        sale period , in relation to a property (seizure and sale) order that is registered under this section in respect of a saleable interest, means the period of 6 months after the date of registration or, if the period is extended by an order made under subsection (13), the extended period;

        saleable interest has the meaning given by section 80(1) of the Civil Judgments Enforcement Act 2004 ;

        sheriff’s dealing , in relation to saleable interest, means a transfer of the saleable interest pursuant to a sale of it by the sheriff under a property (seizure and sale) order.

        (1a)         An application to the Registrar under this section must be made in an approved form.

        (2)         A judgment creditor who is named in a property (seizure and sale) order may apply to the Registrar to have the order registered in respect of any saleable interest —

            (a)         that the judgment debtor named in the order has in any land that is under the operation of this Act; and

            (b)         that is registered in respect of the land.

        (3)         The application must —

            (a)         be made before the order ceases to have effect under the Civil Judgments Enforcement Act 2004 ; and

        [(b)         deleted]

            (c)         identify the land in which the judgment debtor has a saleable interest; and

            (d)         identify the judgment debtor’s saleable interest; and

            (e)         be accompanied by a copy of —

                  (i)         the order, certified as a true copy by the sheriff; and

                  (ii)         any order made under section 15 of the Civil Judgments Enforcement Act 2004 that affects the order or the judgment to which it relates;

                and

            (f)         be accompanied by the prescribed fee; and

            (g)         contain or be accompanied by any other information that is prescribed.

        (4)         Subject to any order made under section 15 of the Civil Judgments Enforcement Act 2004 , on such an application the Registrar must register the order in respect of the judgment debtor’s saleable interest, with effect from the time when the application was lodged, if satisfied that —

            (a)         the application is made in accordance with subsection (3); and

            (b)         the judgment to which the order relates has not been satisfied; and

            (c)         the order is not already registered and in effect in respect of that saleable interest.

        (5)         If the order is registered in respect of a saleable interest, the order has effect for the purposes of this section until a discharge of it is registered under subsection (12), subject to any order made under section 15 of the Civil Judgments Enforcement Act 2004 .

        (6)         Until the order is registered in respect of a saleable interest, a sheriff’s dealing in relation to the interest is not valid as against a purchaser of the interest for valuable consideration, notwithstanding that at the time of the purchase —

            (a)         the order had been received by the sheriff; or

            (b)         the purchaser had actual or constructive notice of the order.

        (7)         While the order has effect in respect of a saleable interest none of the following prevails against a sheriff’s dealing in relation to the interest —

            (a)         an unregistered instrument, document, or writing;

            (b)         an equitable mortgage or charge by deposit or otherwise without writing that affects any land, lease, sublease, mortgage, annuity or other charge,

                unless a caveat in respect of the matter referred to in paragraph (a) or (b) is lodged —

            (c)         before the Registrar receives the application to register the order; or

            (d)         with the permission of the sheriff while the order has effect.

        (8)         While the order has effect in respect of a saleable interest, an instrument that affects the interest must not be registered unless —

            (a)         the sheriff has given permission for the instrument to be registered; or

            (b)         the instrument is an order made, or a notice given, under the Land Administration Act 1997 in relation to Crown land by the Minister under that Act; or

            (c)         the instrument is another property (seizure and sale) order.

        (9)         If while the order has effect in respect of a saleable interest a sheriff’s dealing is lodged, the Registrar must register the dealing.

        (10)         For the purposes of subsection (9) the Registrar may register a sheriff’s dealing without requiring the production of the duplicate (if any) of the certificate of title or a Crown lease or of any other instrument if —

            (a)         the Registrar has given at least 14 days’ notice of his intention to do so in at least one newspaper published in the city of Perth or circulating in the neighbourhood of the land; and

            (b)         the transferee has paid the cost of giving the notice.

        (11)         When a sheriff’s dealing is registered under subsection (9) in respect of a saleable interest —

            (a)         the dealing, if made by the sheriff, has effect as if it was made by the judgment debtor; and

            (b)         the judgment debtor’s title to the saleable interest is extinguished; and

            (c)         any estate or interest of an unregistered purchaser, transferee or mortgagee of the saleable interest or of a person claiming under or through the judgment debtor is extinguished unless it is the subject of a caveat —

                  (i)         lodged before the Registrar received the application to register the order; or

                  (ii)         lodged with the permission of the sheriff while the order has effect.

        (12)         If while the order has effect —

            (a)         a saleable interest in respect of which the order is registered is transferred by the registration of a sheriff’s dealing or otherwise; or

            (b)         the judgment creditor applies to the Registrar for the order to be discharged in relation to a saleable interest in respect of which the order is registered; or

            (c)         on an application made to the Registrar by any person and accompanied by the prescribed fee, the Registrar is satisfied that —

                  (i)         the judgment to which the order relates has been satisfied; or

                  (ii)         the order has been cancelled by the court that issued it; or

                  (iii)         the sale period has expired,

                the Registrar must register a partial or total discharge of the order, as the case requires, with effect from the time when the saleable interest was transferred, or the application was lodged, as the case requires.

        (13)         If, on an application made by the judgment creditor, the court that issued the property (seizure and sale) order is satisfied that there is a good reason why a sale of the saleable interest will not occur during the sale period, it may make an order that extends the sale period for a period set by the court that is not longer than 6 months.

        (14)         Unless the court orders otherwise, an application made under subsection (13) must be served on —

            (a)         the judgment debtor; and

            (b)         any other judgment creditor who has obtained the registration of a property (seizure and sale) order in respect of the saleable interest; and

            (c)         any other person who has an interest in the saleable interest.

        (15)         An order may be made under subsection (13) on more than one occasion.

        (16)         An order made under subsection (13) has no effect unless it is lodged with the Registrar before the sale period would otherwise expire together with an application to have the order registered and the prescribed fee.

        (17)         If an order, an application and the prescribed fee are lodged under subsection (16) before the sale period would otherwise expire —

            (a)         the Registrar must register the order; and

            (b)         the registered order extends the sale period from its expiry for the period stated in the order.

        (18)         If under this section an instrument or caveat that may be lodged with the sheriff’s permission is lodged, the sheriff’s written permission must be lodged with or endorsed on the instrument or caveat.

        [Section 133 inserted: No. 59 of 2004 s. 138; amended: No. 5 of 2008 s. 122.]



AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback