How to get an Order for Sale at Best Price Obtainable

If an enforcement creditor has obtained an enforceable money order, and the enforcement debtor owns real property, then the Court can issue a warrant for seizure and sale of that real property at the best price obtainable.

The enforcement officer (Bailiff) then arranges for that property to be sold at auction.

If the property does not sell at auction, then what are the options for the judgment creditor?

Rule 833 of the Uniform Civil Procedure Rules 1999 (Qld) (“the UCPR”) allows for the enforcement officer or an enforcement creditor to make an application to the Court for an order to sell property at the best price obtainable.

There is little written about this, very few cases, and not much commentary.

In this article our litigation lawyers will explain the process of getting this order.

If you are an enforcement creditor, and the enforcement debtor’s real property failed to sell at auction, then contact us today for advice and assistance with obtaining an order for sale at best price obtainable.

What is an Enforceable Money Order?

First, the enforcement creditor must have an enforceable money order to be able to enforce it over the property of the enforcement debtor.

Rule 793 of the UCPR says:

“enforceable money order”, of a court, means—

(a) a money order of the court; or

(b) a money order of another court or tribunal filed or registered under an Act in the court for enforcement.

So, this can include a monetary order of the Court, or a monetary decision of a tribunal which has been registered in the Court.

For example, section 131 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“the QCAT Act”) says:

(1) This section applies to a final decision of the tribunal in a proceeding that is a monetary decision, to the extent the decision requires payment of an amount to a person.

(2) A person may enforce the final decision by filing a copy of the decision in the registry of a court of competent jurisdiction.

(3) On filing a copy of the final decision under subsection (2) , the decision is taken to be a money order of the court in which it is filed and may be enforced accordingly.

So, you have your money judgment from the Court or your registered QCAT decision from the tribunal, then you can now seek to enforce that over the real property of the enforcement debtor.

Enforcement Warrants for Seizure and Sale of Property

Chapter 19, Part 4 of the UCPR deals with the seizure and sale of the enforcement debtor’s property.

This property includes personal property and real property.

A warrant for seizure and sale is obtained by making an application to the Court.  The application consists of:

1. The application;
2. A statement in support of the application; and
3. A draft enforcement warrant.

After the Court issues the UCPR enforcement warrant, it is then given to the enforcement officer to execute.

Rule 832 of the UCPR says that an enforcement officer must put up for sale by public auction all property liable to be sold under an enforcement warrant.

A reserve price is set as with most auctioned items, and if the reserve price is not met, then the real property will not sell.

For more information on this, we have a very detailed article on Enforcement Warrant for Seizure and Sale of Property.

So, what happens if the real property does not sell at auction?

Rule 833 – Sale at Best Price Obtainable

Rule 833 of the UCPR says:

(1) This rule applies if the enforcement debtor’s property has not been sold under rule 832.

(2) An enforcement officer or an enforcement creditor may apply to the court for an order to sell property at the best price obtainable.

(3) The application must be supported by an affidavit giving details of the required steps for sale that have been taken.

(4) Unless the court orders otherwise, the enforcement debtor must be served with the application.

So, this means that if the enforcement officer does not sell the property at public auction under rule 832, then an order can be made for sale at the best price obtainable.

This raises for points which need further explanation, namely:

1. What type of application is it?
2. What must be included in the affidavit giving required steps?
3. How do you serve this application?
4. What does “best price obtainable” mean?

I will go through these in a little more detail below.

What Type of Application is it?

This is an interlocutory application, or an application in a proceeding.

In Solomon v Corbel [2011] QMC 36 Costanzo JJ discussed this issue, and said:

In my view the application in this matter is not an originating application, because it is an application which is about the outcome of a proceeding. It is concerned with the enforcement of a judgment debt which arose as a result of a money order made by this Court, by another Magistrate. In my view, therefore, it is an interlocutory application.

This is relevant because of fees and methods of service, see below.

For this type of application, the enforcement creditor will need:

1. An application – Form 9
2. A draft order – Form 59
3. An affidavit – From 46.

The application is a document requesting that the Court make an order in accordance with the draft order.

The draft order will be something along the lines of:

1. Order that the enforcement officer or a person authorised by the enforcement officer sell the property located at XXXXXXX (Lot XXX on Survey Plan XXXXXX) being all the land contained in title reference XXXXXXX which is the subject of the enforcement warrant for seizure and sale of property issued on [DATE] at the best price obtainable.
2. Order the defendant pay the plaintiff’s costs of and incidental to this application to be assessed on the standard basis if not agreed.

Obviously, this will vary depending on the nature of your particular case, but this is roughly the type of order that you will require.

You will also need to provide an affidavit giving evidence of the required steps taken before this application for an order under rule 833.

What is to be included in that affidavit?

What must be Included in the Affidavit giving Required Steps?

The steps that have to have been taken are contained between rule 828 of the UCPR and rule 832 of the UCPR.

The enforcement creditor should provide evidence of the following:

1. The enforceable money order
2. The enforcement warrant
3. The writ on the title of the real property
4. The requirements of the enforcement officer (valuations, reserve price, notice, etc)
5. Evidence of the public auction taken place; and
6. Evidence that the real property did not sell.

Once these things are collated in an affidavit (or affidavits) then it can be filed in the Court, sealed with the Court’s seal, and then served on the enforcement debtor.

How do you Serve this Application?

As mentioned above, as per Solomon v Corbel [2011] QMC 36 this is an interlocutory application and so the rules of interlocutory applications apply.

Rule 27 of the UCPR states that:

(1) An application must be filed and then served on each respondent at least 3 business days before the day set for hearing the application.

So, the application must be served at least three (3) business days before the hearing date.  This excludes the service date, and the date of the hearing.

Section 38 of the Acts Interpretation Act 1954 (Qld) excludes those two (2) days when it says:

(1) If a period beginning on a given day, act or event is provided or allowed for a purpose by an Act, the period is to be calculated by excluding the day, or the day of the act or event, and—

(a) if the period is expressed to be a specified number of clear days or at least a specified number of days—by excluding the day on which the purpose is to be fulfilled; and

(b) in any other case—by including the day on which the purpose is to be fulfilled.

At the hearing of the application, the Court can make an order that the property sell for the best price obtainable.

What does “Best Price Obtainable” Mean?

In Solomon v Corbel [2011] QMC 36 Costanzo JJ discussed this issue of what it means to sell the property at the best price obtainable.

It does not mean that the enforcement officer or enforcement creditor can take whatever they can get for the property.

It means that the parties will need to provide evidence in relation to the value of the property in the current market, and evidence of what a reasonable price would likely be (not simply the value of the property).

The cases referred to in this case were not exactly on rule 833, but Costanzo JJ said:

[The cases] act as a very strong guide as to the factors that I could take into account, and must take into account in deciding whether there is evidence of the best price obtainable and as to whether or not the Court should exercise its discretion to make an order under rule 833.

The cases referred to the Court included:

1. Margeorg Pty Ltd v Kavanagh [2009] QSC 211
2. Anderson v Liddell (1968) 117 CLR 36
3. Owen v Daly [1955] VLR 442.

When discussing these cases, Costanzo JJ said:

In deciding the best price obtainable, in my view the Court must act on evidence and there is a discretion to exercise which may not be exercised favourably to the applicant if the evidence does not satisfy the onus on the applicant to prove the best price obtainable, or if there are other discretionary factors weighing against the exercise of the discretion.

The applicant in this matter failed to provide evidence of what the best price obtainable was.

They tried to argue that because the highest bid at the auction was $250,000.00 that this is the best price obtainable.

This was not accepted by His Honour who said:

I am not satisfied that the best obtainable price is $250,000. In all the circumstances, and all the evidence before me, the applicant has failed to discharge his onus to satisfy me firstly, of what the best obtainable price is, and it is most certainly not $250,000; and secondly, has failed to satisfy me that I should, in any case, exercise my discretion to make an order as sought.

In the more recent case of Barclay v See Well Law Practice & Anor [2022] QDC 300, His Honour Cash DCJ made the following order:

[p]ursuant to rule 833(2) of the Uniform Civil Procedure Rules 1999 (QLD), the property described as lot 18 on registered plan 181298, being the whole of the land contained in title reference 164321921, and which is the subject of the enforcement warrant for the seizure and sale of property issued by this honourable Court on 17 March 2022 be sold at the best price obtainable.

This matter related to a costs order that was made against a solicitor named Donna Maree Sewell personally in See Well Law Practice Pty Ltd v Barclay [2021] QDC 114 because the Court found that Donna Sewell “cannot be separated from the applicant” and that she “is the real litigant in the proceedings, that she has controlled the litigation“.  In conclusion of that case, Cash KC DCJ decided:

I order the applicant and Donna Maree Sewell to pay the respondent’s costs of the proceeding in the District Court fixed in the amount of $35,000.

The respondent in that matter then obtained a warrant for seizure and sale of the real property of Donna Sewell. For whatever reason, this sale did not occur (perhaps it did not meet the reserve price), and the respondent in that case, made an application as outlined above.

Order for Sale at Best Price Obtainable

If you have an enforcement warrant for seizure and sale of property, and the property did not sell at auction, then you can seek to obtain an order pursuant to rule 833 of the UCPR.

You will need to file the application, affidavit, draft order, and an affidavit giving details of the required steps for sale that have been taken.

You will also need to provide evidence & submissions in relation to what the best price obtainable actually is – RP Data, neighbourhood / street reports etc.

If you are an enforcement creditor, and the enforcement debtor’s real property failed to sell at auction, then contact us today for advice and assistance with obtaining an order for sale at best price obtainable.