New South Wales Consolidated Acts

CIVIL PROCEDURE ACT 2005 - SECT 113

113 Sale or mortgage by judgment debtor of land affected by order

(cf Act No 52 1970, section 98A; Act No 9 1973, section 112; Act No 11 1970, section 62A)

(1) This section applies to land the subject of a writ for the levy of property--

(a) that is registered, in the Register kept under the Real Property Act 1900 , pursuant to section 105 of that Act, or

(b) that is registered, in the General Register of Deeds kept under the Conveyancing Act 1919 , pursuant to section 186 of that Act.

(2) During the period--

(a) that begins when the writ is registered in the relevant register, and

(b) that ends at the expiration of 6 months after the writ is registered in the relevant register, or on the expiration of the writ, whichever first occurs,

land the subject of the writ may not be sold or mortgaged by the judgment debtor otherwise than in accordance with this section.

(3) Before the land may be sold or mortgaged by the judgment debtor--

(a) the judgment creditor--

(i) must consent, by notice in writing, to the sale or mortgage of the land by the judgment debtor, and

(ii) must stipulate, in the notice of consent, the minimum amount to be paid to the Sheriff from the proceeds of the sale of the land or from the money advanced under the mortgage of the land, and

(b) the judgment debtor must lodge the notice of consent with the Sheriff, and

(c) the Sheriff, after due inquiry, must endorse the notice of consent with a certificate to the effect that the land has not been sold under the writ.

(4) During the period of 8 weeks commencing on the date on which the Sheriff endorses the notice of consent, as referred to in subsection (3) (c)--

(a) the judgment debtor may enter into an agreement for the sale or mortgage of the land, and

(b) the Sheriff is prohibited from causing the land to be sold.

(5) Any deposit paid under an agreement for the sale of the land is to be paid to the Sheriff, to be held by the Sheriff as stakeholder.

(6) On payment to the Sheriff, from the proceeds of the sale of the land or from the money advanced under the mortgage of the land, of an amount that (together with any such deposit) is at least as much as the minimum amount referred to in subsection (3) (a) (ii)--

(a) any liability of the purchaser or mortgagee for payment to the judgment debtor from those proceeds or that advance is extinguished, to the extent of the amount paid to the Sheriff, and

(b) the Sheriff, on production of the agreement for the sale or the mortgage instrument, must endorse--

(i) in the case of a sale, the agreement for sale, or

(ii) in the case of a mortgage, the mortgage instrument.

(7) The purchaser's or mortgagee's interest in the land, as evidenced by the agreement or mortgage instrument so endorsed, is not affected by anything done under the writ, whether before or after the endorsement of the consent.

(8) The amount paid to the Sheriff, as referred to in subsection (6), is to be paid--

(a) firstly, towards the Sheriff's costs in connection with the execution of the writ, and

(b) secondly, in reduction of the judgment debt, and

(c) thirdly, if the amount exceeds the amounts required to satisfy the Sheriff's costs and the judgment debt, to the judgment debtor.

(9) In this section,
"notice of consent" means a notice referred to in subsection (3) (a) (i).