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1. Overview
The Civil Judgments Enforcement Act 2004 (the Act) was proclaimed on 22 December 2004 and came into operation on 1 May 2005. The object of this Act is to provide for the enforcement of Judgments given in the civil jurisdiction of the Supreme, District, Federal and Magistrates Courts (the Court) and for related matters.
This Act introduces an enforcement process known as a Property (Seizure and Sale) Order (PSSO). A PSSO replaces a Warrant of Execution (Warrant) and a Writ of Fieri Facias (Fi-Fa) (see WAW-01 Writs of Fieri Facias and Warrants of Execution).
Parts 3 and 24 of the Acts Amendment (Justice) Act 2007 became operative on 30 September 2008 and amended sections 133, 138 and 139 of the Transfer of Land Act 1893 (TLA) in relation to Property (Seizure and Sale) Order (PSSO) under the Civil Judgments Enforcement Act 2004.
Regulations 37 and 41 of the Civil Judgments Enforcement Regulations 2005 have also been amended.
The lodgement of a PSSO is a mechanism in assisting with the enforcement of payment of debt when a person takes someone to Court (i.e. sues them for damages or outstanding monies for works done) and they are awarded monetary judgement. The Court does not make the person pay the amount owed. To enforce the judgement, the Judgement Creditor can take out a PSSO against the Judgement Debtor’s personal or real property (Land). When a PSSO has been registered the Sheriff or the Supreme Court can be instructed to sell the Judgement Debtors land to satisfy the debt.
A PSSO can be issued out of any of the above-mentioned courts and has a life of 12 months. An Application can be made to the court to extend the life of a PSSO beyond the initial 12-month period.
When the Court issues a PSSO it is given to the Sheriff. The Sheriff records receipt of the PSSO and sends a certified copy of it to the Judgment creditor.
Fees are payable on both the lodgement and the extension of a PSSO.
Note: Section 133(4)(c) of the TLA prevents registration of a PSSO that is already registered and in effect in respect of the same saleable interest. However, if the execution creditor withdraws the already registered PSSO before lodging the new PSSO, then Landgate can register the new PSSO.
An exception to this rule is where a PSSO with the same plaint number is issued for two separate judgments. For example, the Court may make an order for an initial judgment amount and subsequently at a later, separate hearing make an order for an amount of costs as taxed. This is an example where two PSSOs can be registered with the same plaint number.
2. How Lodged
To register a PSSO, a copy certified by the Sheriff or a Deputy Sheriff of the Civil Judgements Enforcement Act 2004, Part 4 Division 6 Form 25 – Property (Seizure and Sale) Order, must be attached to a Application to Register Property (Seizure and Sale) Order form. This form can also be downloaded from the Land Titling Forms section on Landgate’s corporate website.
A PSSO can be registered against the registered interests of:
- the proprietor of the fee simple
or
- a mortgagee \ chargee \ lessee etc.
Note: A PSSO can still be registered where the original Order has expired. The Application to registered a PSSO must include an additional Order extending the operation of the Order up to 12 months. This Order should not be confused with an order extending the ‘Sale Period’.
2.1. Against the Fee Simple
If the PSSO is to be registered against the proprietor of the fee simple, Fee Simple is to be inserted under the words Description (Note 1) in the Saleable Interest panel of the application.
2.2. Against Other Interests
A PSSO can be registered against a mortgage, charge or lease etc. If the PSSO is to be lodged against, for example a mortgagee’s interest, Mortgage is to be inserted under the words Description (Note 1) and the Mortgage number inserted under the words Registration Number (Note 2).
2.3. Saleable Property and Seizable Property
The Seizable Property address noted on the form 25 PSSO Order does not have to be the same as the Saleable Property address noted on the certificate of title. The Seizable Property address on the form 25 (PSSO) is an address at which the sheriff may seize property (other than real property) belonging to the judgment debtor. The saleable property, however is real property registered in the name of the execution debtor. As noted above the seizable property address may be the same as the saleable interest address but this is not mandatory.
2.4. Execution
A Application to Register Property (Seizure and Sale) Order form incorporates a statutory declaration to declare that the judgment debtor as shown in the PSSO is one and the same person as the proprietor of the saleable interest referred to on the certificate of title. A person qualified to take statutory declarations must witness the document.
Note: The statutory declaration is part of the form and is to be made even if there are no discrepancies in the names or address.
2.5. Suspension Order
Before the application to register the PSSO is lodged, the court may have granted a Suspension Order. Therefore, an application to register a PSSO has the following question that must be answered:
Has a Suspension Order been made? YES / NO
If a suspension order has been made an original sealed copy of it must also accompany the application.
No reference to a Suspension Order is necessary when the PSSO is endorsed on the title. However, on the rare occasion that a suspension order is lodged with an application to register a PSSO, it will be referred to the Lead Consultant Complex Dealings to determine (on a case by case basis) whether a special endorsement is required.
Note: If a suspension order is obtained after the PSSO has been registered, there is no provision or requirement that it be served on the Registrar of Titles.
The Sheriff will not sell the land while a PSSO is subject to a suspension order.
3. Effect of Registration
An Application to register a Property (Seizure and Sale) Order Form A10 binds the land for 6 months (the sale period) from the date of its registration. If the court grants an order extending the sale period, an application to register an order extending the sale period (see section 4 below) must be lodged before the 6-month period has expired.
If a PSSO endorsed on the title has expired, it no longer binds the register. However, before any instruments (e.g. Transfers, Mortgages and Leases etc.) can be registered, an Application to Register a Discharge of a Property (Seizure and Sale) Order (see PSS-02 Property (Seizure and Sale) Order - removal) must be lodged.
When a PSSO is registered against land and is current, it is a bar to the registration of subsequent instruments (other than another PSSO or an order or notice given under the Land Administration Act 1997 by the Minister in relation to crown land), unless the written consent of the Sheriff or Deputy Sheriff is endorsed on or filed with the document to be lodged.
If a caveat is lodged against the proprietor of the fee simple or other interest that is encumbered by a PSSO, notice that a caveat has been lodged must be served on the judgment creditor. The judgment creditor can take action to remove the caveat under s.138B of the TLA.
Note: A writ or warrant endorsed on a title that is still current as at 1 May 2005 is deemed to be a PSSO and will automatically bind the land for 6 months from the date of its lodgement. Any Writ or Warrant that has been satisfied, or on which the sale period has expired, must be discharged using an application to register a discharge of a PSSO (Form A12) before any instrument (e.g. Transfers, Mortgages and Leases etc.) can be registered.
4. Application to Register an Order Extending the Sale Period in a Property (Seizure and Sale) Order
When a PSSO has been registered it binds the land for 6 months (called the ‘Sale Period’). It may be possible to obtain an order extending the sale period in a PSSO. Section 133(13) of the TLA provides for the granting of an Order which extends the ‘Sale Period’ of a registered current PSSO. The court may extend it for any specified time period that is not greater than 6 months.
An Order to extend a PSSO that has already been registered must be extended by Court Order before the initial 6-month "Sale Period" has expired. When registered the Court Order extends the sale period from the end of the sale period for 6 months but not longer. The Court Order should be worded to start the sale period extension from the expiry of the current 6-month period. Section 133(16) of the TLA states 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.
An extension which attempts to extend the sale period from a date prior to the expiry date of the 6-month statutory sale period should not be accepted (see s.133(17) of the TLA).
To register an order extending the sale period in a PSSO, an original sealed copy of the order (can be a Form 25 – General Order or Form 8 - Order) must be attached to a Application to Register an Order Extending the Sale Period in a Property (Seizure and Sale) Order form. The Form A11 can also be downloaded from the Land Titling Forms section on Landgate’s corporate website.
4.1. Calculating of ‘Sale Period’ on a title
The sale period commences on the date of lodgement of the PSSO, not on the date of the Order. Where an extension of the sale period has been granted multiple times and noted on the title with the endorsement ‘Order Extending Sale Period’ care should be taken when calculating the expiry date of the PSSO.
Whilst it is more likely than not, a PSSO can be extended for a time shorter than 6 months. Persons seeking to lodge an extension of PSSO should search existing extensions to confirm if the sale period has been extended for 3 months, 6 months or as the court deems fit.