Western Australian Current Acts Western Australian Current Acts (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 deleted]
(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; No. 21 of 2022 s. 30.]