Warrant of seizure and sale
A warrant of seizure and sale authorises an enforcement officer to enter private property and seize and sell the debtor’s real and personal property by public auction. The auction proceeds are applied to the judgment debt and associated expenses, less any existing mortgage or charge.
The warrant is issued by the court or the registrar at the courthouse where the judgment was given, ordered or filed.
The creditor can apply for a warrant without notice to another party.
When to apply
Apply for this warrant if you find that the enforcement debtor has a legal or beneficial interest in items, goods, chattels or real property that are likely to attract interest at a public auction.
Before applying for any warrant, you may consider an enforcement hearing, which can help identify which of the debtor’s assets are suitable for seizure.
Your success will depend on the value and condition of the debtor’s goods, chattels or real estate, and the interest they attract at the auction.
What the bailiff can seize
A bailiff can seize only certain goods. For example, they can’t take tools of trade (up to a certain value) or a car (up to a certain value) if the debtor needs them to make a living.
The bailiff can seize any items, goods, chattels or real property that:
- the enforcement debtor has a legal or beneficial interest in
- is specified in the enforcement warrant
- is not exempt under the bankruptcy legislation.
Any property exempt from seizure and sale is listed in r. 6.03 of Bankruptcy Regulations 1966 (Cwth) and s. 116 of Bankruptcy Act 1966 (Cwth). Property that can’t be divided among the parties who have a claim to it is also exempt.
How to apply
Generally, you must apply for a seizure and sale warrant within six years of the date the judgment was made. After six years, but within another year, you must apply to the court before enforcement can occur.
Also file Form 74 - Statement in support (UCPR) —sworn no more than two business days before the date of filing—disclosing:
- the date and amount of the money order
- the date and amount of any payment made under the order
- the costs incurred in previous enforcement proceedings
- any interest due on the date the statement is sworn and daily amount accruing after
- any other details necessary to calculate the amount payable under the order on the date the statement is sworn and show how the amount is calculated.
Before taking action, the enforcement officer also needs a letter of instruction stating whether the warrant is to be executed, and providing a contact person’s name and phone number.
If you’re requesting action, the court registry must have Enforcement Creditor’s Instructions together with:
- a security deposit (check with the court registry)
- a clear copy of a current title search showing all encumbrances, including the date of the registration of warrant on the title deed
- the debtor’s last known address
- the full residential address of the property and the name and address of the owner/s (Queensland Valuation and Sales property search)
- the payout figure from financial institution/s
- (for real property) an independent valuation of the property conducted by a valuer licensed in Queensland.
Certified copies of the warrant may be ordered if required.
Enforcement warrants are usually processed within one week and can usually be enforced for up to one year.
There are no court filing fees, but execution and auction expenses will be incurred, including:
- seizure expenses, e.g. tow truck, removalists
- advertising and auction expenses
- the bailiff’s execution fees and expenses, e.g. phone, travel and time. Security covers any expenses incurred by the bailiff while executing the warrant.
Note: You have to provide a security deposit to cover the enforcement officer’s expenses before seizure. However, other expenses can be deducted from the auction proceeds. The registrar will receive the proceeds and pay:
- the enforcement officer’s costs
- advertising expenses
- court fees
- the amount owing to the creditor (or solicitor or agent)
- any balance to the debtor.
Auctioning a motor vehicle
If you need this warrant to auction the debtor’s motor vehicle, you need a red book valuation and evidence that the vehicle is not encumbered. (Read more about clear title or free from debt.) This is not court staff or enforcement officer responsibility.
If you need this warrant to auction the debtor’s land, you need a copy of the warrant noted on the title deed. This is not court staff or enforcement officer responsibility.
Request the warrant copy in writing and pay the relevant fee, and register the warrant on the title.
Provide a current title search, property valuation (by valuer licensed in Queensland), local authority rate details and mortgage payout details (if any).
The enforcement officer doesn’t have to supply information about flood levels, drainage problems etc., but they must explain to any potential bidders that the land is purchased with a mortgage (if that is the case).
There is no absolute rule about which bid the bailiff should accept at the auction, but the bailiff can seek instructions from the registrar. Prior to the auction, a reserve price will be set, based on the valuation of the property and allowing for market fluctuations. The reserve price will not be disclosed to you or any bidder prior to the auction.