WAW-01 Writs of Fieri Facias and Warrants of Execution
Version 1 – 16/01/2018
With the introduction of the Civil Judgments Enforcement Act 2004, which came into operation on 1 May 2005, writs and warrants have been replaced with an enforcement process known as a Property (Seizure and Sale) Order (PSS-01 Property (Seizure and Sale) Order).
Historically, Writs and warrants, although issuing from different Courts, had the same effect when lodged against land registered under the Transfer of Land Act 1893 (TLA) or any lease, mortgage or charge and for convenience are dealt with together. Writs were issued out of the Supreme Court and District Court and Warrants were issued out of the Local Court.
Writs and warrants had a life of twelve months and could be extended, prior to their expiry, by a Judge or Magistrate. The original writ or warrant was lodged with the Sheriff or Bailiff, and the Registrar was served with a certified copy (in practice they were simply lodged).
Most writs and warrants were lodged by either natural persons or incorporated bodies, but under the Supreme Court Rules legal firms could successfully apply for the issue of a writ or warrant in the name of the legal firm or partnership. Although this did not cause any problems at lodgement, care needed to be taken when withdrawing it from the title.
2 How Lodged
Where a judgment creditor desired to execute a writ or warrant against any land, lease, mortgage or charge registered in the name of the judgment debtor, he or she had to comply with the provisions of s.133 of the TLA. Service on the Registrar was effected by lodging a certified copy of a writ issued out of the Supreme Court or the District Court or a certified copy of a Warrant issued out of the Local Court.
The authority to treat warrants in the same manner as Writs of Fieri Facias was contained in s.125 of the Local Courts Act 1904. Each copy of a writ or warrant lodged must have had endorsed on it a statement in the following form:
To the Registrar of Titles,
The land sought to be affected by the within Writ of Fieri Facias (or Warrant of Execution) is all that piece of land being (then follows correct land description) standing in the Register in the name of A of etc.
Signed A B Legal & Co
Solicitor for the Judgment Creditor
Where there was more than one registered proprietor and only one is the judgment debtor, the above statement must have been limited to the interest of the named judgment debtor.
The identity of the judgment debtor with the registered proprietor must have been properly established. Any difference shown in the writ or warrant of name, address or occupation with those shown in the Register must have been explained by statutory declaration. The declarant must have stated the means of knowledge. The declaration must have positively identified the registered proprietor of the land as the defendant in the action.
3 Effect of Lodgement
A writ or warrant remained in effect on the Register for a period of four months from the date of lodgement unless it was withdrawn. Within the twelve months’ life of the writ or warrant or any extension thereof (see above) a further copy of the writ or warrant could be lodged during or after the expiry of any previous four-month period. While current, a writ or warrant had the same effect as an absolute caveat. If a transfer by way of sale under the writ or warrant was presented for registration, it must have been presented during the period in which the writ or warrant was current.
If the latest four-month period had expired, a further copy of the writ or warrant must have been lodged before registration of the transfer could take place (s.90 of the TLA- deleted by No. 59 of 2004’s 140). When the time (4 months) was calculated- the day of lodgement was not counted and no account was taken of the time of lodgement in calculating the expiry as expiry occurs at the end of the last day.
Any writ or warrant endorsed on a title that was still current as at 1 May 2005 was deemed to be a Property (Seizure and Sale) Order and automatically bound the title for 6 months from the date of its lodgement.
4 Interests in Land Protected Against Execution
Certain interests in land were protected against execution. These were:
- land held by a person or trustee (unless the person was named as execution debtor in his or her capacity as trustee)
- a lease of a homestead farm (s.66(3) of the Land Act 1933)
- land subject to a State Housing Commission mortgage granted under the State Housing Act of 1946-75 which could not be sold except with the consent of the Commission (no consent was required for similar mortgages issued under the Housing Act)
- land subject to a mortgage under the Defence Service Homes Act 1918 which could not be taken in execution without the consent in writing of the Defence Service Homes Corporation.