Writ or Wrong?

June 30, 2018 / by RCR / Litigation / 0 Comments

You obtain a judgement in a Court in Queensland – what do you do next?

There are many ways on enforcing judgements in Queensland, including but not limited to obtaining an enforcement warrant for:

  • the redirection of a debt;
  • redirection from a financial institution;
  • redirection of earnings;
  • seizure and sale of property.

This article will focus on the latter, in that whether obtaining an enforcement warrant for the seizure and sale of property is, in the present climate, a productive and efficient enforcement measure.

In brief, a warrant for the sale and seizure of property, for instance, in this example, real property, will allow the judgement creditor, the creditor, to register a Form 13: Writ (Writ) over the judgement debtor’s, the debtor’s, property (provided such property is in the debtor’s name – individual or otherwise). The Writ will not be able to be registered an individual’s name where the debtor is a company, and even though the individual is the sole director of that debtor company.

According to the Land Titles Practice Manual published by the Land Titles Office, Queensland, a Writ “provides the means to compel an involuntary sale of the debtor’s property for the satisfaction of the judgement or order.” Simply put, a Writ allows the bailiff to sell the debtor’s property without their permission. Once the Writ has been registered on the title to the debtor’s property, the Court bailiff can then start the process of enforcing same.

It seems like a simple and effective process, however is it?

Rostron Carlyle Lawyers have found that where the property is encumbered, by way of mortgage, the mortgagee (the banks) are becoming more unwilling to provide the payout details to the bailiff in order to affect the sale of the property. At this juncture, it is important to note that the registration of a Writ does not provide the judgement creditor priority in any bankruptcy or liquidation of the judgement creditor. Failure by the mortgagee to provide such payout details, has been an impediment to the effective and efficient execution of the Writ, and usually results in a stalemate between the bailiff, the mortgagee and the judgement creditor. Such impasse quite often remains unresolved. To this end, whilst an enforcement warrant for the seizure and sale of property is an option available to judgement creditors it may not be as effective as it was previously.

Do not fear – there are still other ways to enforce a judgement debt. Come speak to the team at Rostron Carlyle Lawyers to help you determine the right method for you in enforcing a judgement debt in Queensland.