Enforcement Warrant for Seizure and Sale of Property

A warrant for seizure and sale of property is an enforcement option pursuant to the Uniform Civil Procedure Rules 1999 (QLD) (“UCPR”).

A warrant for seizure and sale of property is a way of enforcing a judgment or enforcing a registered QCAT decision.

A warrant for seizure and sale of property allows the creditor to enforce an enforceable money order over the property of the debtor.

Property can include all real and personal property of the debtor that is not exempt property, but in reality, is more likely to be real property or vehicles.

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 applying for enforcement warrant, when the Court issues the UCPR enforcement warrant, it is then given to the enforcement officer to execute the warrant.

This article will give you all the information needed to apply for an enforcement warrant, and give you hints and tips to avoid pitfalls.

There are a number of complicated steps that need to happen before a Court Bailiff can execute a warrant for seizure and sale of property. We strongly recommend engaging a legal professional

Enforcement Warrant for Seizure and Sale of Property

The steps needed for a warrant for seizure and sale of property include:

1. A creditor will need an enforceable money order;
2. The creditor must complete an application – Form 9;
3. The creditor must complete the draft warrant – Form 75;
4. The creditor must complete a statement in support of the application – Form 74;
5. The creditor will then need to provide the warrant to the enforcement officer for enforcement by one of the various enforcement options.

We will break each of these steps down in more detail below.

A Creditor will need an Enforceable Money Order

An enforceable money order is defined in rule 793 of the UCPR:

“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.

Schedule 3 of the UCPR defines an order to mean:

“order” … includes a judgment, direction, decision or determination of a court whether final or otherwise.

An enforceable money order is a money judgment, direction, decision or determination – of a court, another court or tribunal – filed or registered … in the court for enforcement.

This will include a money judgment in the Magistrates Court, or a decision in QCAT registered in the Magistrates Court for enforcement.  An unregistered QCAT decision is not an enforceable money order until it is registered in the Court.

Six (6) Year Limitation Period – Warrant for Seizure and Sale of Property

The enforceable money order is able to be enforced – without leave of the Court – and time after six (6) years from the date of the order.

Rule 799(1) of the UCPR says:

An enforcement creditor may start enforcement proceedings without leave at any time within 6 years after the day the money order was made.

If six (6) years have passed since the day the money order was made then a judgment creditor may still proceed against the debtor, but only with leave of the Court.

If you have an enforceable money order which is less than six (6) years old, then you can draft and file the required documents in the Court.

The Creditor must Complete the Documents

The documents needed for the Court to issue an enforcement warrant are all required forms on the Queensland Courts website.  They are:

1. An application – Form 9;
2. A draft warrant – Form 75; and
3. A statement in support of the application – Form 74.

The Application – Warrant for Seizure and Sale of Property

The application Form 9 outlines the order (or orders) that the plaintiff wants the Court to make.

The application will say something like:

TAKE NOTICE that the Plaintiff is applying to the Court for the following orders:

1.    That pursuant to rule 828 of the Uniform Civil Procedure Rules 1999 (QLD) an enforcement warrant for seizure and sale of the property of the Defendant to satisfy the judgment amount; and

2.    That the Defendant pay the costs of the Plaintiff for costs of preparing the warrant and attending to issuing and for return fixed in the sum of $XXX.

The costs of the warrant are fixed at Schedule 2 of the UCPR depending on the amount of the claim – see item 15.

A creditor may apply for an enforcement warrant without notice to another party.  This means that a creditor can apply for a warrant, and the Court can issue the warrant, without the debtor being notified.  Only when it is issued does the debtor need to be served.

The Draft Warrant for Seizure and Sale of Property

The draft warrant Form 75 is a pro-forma form which a judgment creditor must complete.  It will need to include:

1. The judgment amount; less
2. Any payments made by the debtor; plus
3. The costs of preparing warrant; plus
4. Interest calculated pursuant to section 59 of the Civil Proceedings Act 2011 (QLD).

The Judgment Amount – is simply the amount awarded in the judgement or registered QCAT decision.

Less Payments Made – means the amount must be deducted from the judgment amount if the debtor has made a few payments toward the debt.  This might have happened if a creditor is applying for a second warrant for example.

The Costs of Preparing the Warrant – means the amount fixed at Schedule 2 of the UCPR depending on the amount of the claim – see item 15.

Interest – means the amount set by section 59 of the Civil Proceedings Act 2011 (QLD) and by paragraph 4 of the Supreme Court of Queensland Practice Direction Number 7 of 2013 – 6% p/a above the cash rate at the Reserve Bank of Australia.

Once you have carefully calculated the total amount of the enforcement warrant for seizure and sale of property, the warrant is then followed by a notice to the enforcement officer saying:

You are to seize and sell such of the real and personal property (other than exempt property) in which the enforcement debtor has a legal or beneficial interest as will satisfy the total amount owing on the judgment.

The warrant then directs the enforcement officer to the known property of the enforcement debtor.

If it is real property, then the creditor will need to add a description of the real property and the lot, plan, title reference etc. on the enforcement warrant for seizure and sale of property.

If it is a vehicle, then a reference to the registration number and/or VIN number of the vehicle, who it is registered to, etc. will need to be provided.

Statement in Support of the Application

The statement in support of an application for an enforcement warrant for seizure and sale of property will need to provide the Court with evidence of what is required for the Court to issue the warrant.

Similar to an affidavit, the statement in support should identify:

1. The person making the statement and the authority they have (solicitor for the judgment creditor, judgment creditor, director of the judgment creditor);
2. Evidence of the decision, judgment, or enforceable money order;
3. Evidence of any payments made as against the judgment debt, or a statement that no payments have been made against the judgment debt;
4. Evidence and a statement supporting the calculation of costs and interest; and
5. Evidence of the property to be seized and sold.

If everything is done correctly and pursuant to the UCPR, the Court will issue you with the enforcement warrant for seizure and sale of property.

Rule 817 of the UCPR outlines the other things that need to be included in the statement, being:

• the date the money order was made;
• the amount for which the order was made;
• the date and amount of any payment made under the order;
• the costs incurred in previous enforcement proceedings in relation to the order debt;
• any interest due at the date the statement is sworn;
• any other details necessary to calculate the amount payable under the order at the date the statement is sworn and how the amount is calculated;
• the daily amount of any interest that, subject to any future payment under the order, will accrue after the date the statement is sworn; and
• any other information necessary for the warrant being sought.

The statement in support of an application for an enforcement warrant for seizure and sale of property must not be sworn/affirmed more than two days before the making of the application.  This is to attempt to ensure that the debt is still outstanding at the time of issuing the warrant. Best practise is to swear/affirm the same day as filing.

Once you have been issued with the enforcement warrant for seizure and sale of property you then will need to commence one of the different enforcement options.

Enforcement Options for Seizure and Sale of Property

For the purpose of this article I will just give information in relation to the following:

1. A warrant for seizure and sale of real property (land); and
2. A warrant for seizure and sale of a vehicle.

The procedure for both are very different.  I will explain both below.

A Warrant for Seizure and Sale of Real Property

Probably the most common enforcement warrant is a warrant for seizure and sale of the debtor’s real property.

Once the warrant has been issued, the creditor has to register the warrant on the title of the debtor’s real property.

This is done by completing a Form 12 and lodging it on the title of the real property.

The creditor will need to conduct a fresh title search and a QVAS (Queensland Valuation and Sales) search to ensure the ownership of the real property.

The Form 12 must then be signed by the Plaintiff or an officer of a corporate plaintiff (director for example).

Once properly drafted and signed, the Form 12 can then be lodged with the Department of Natural Resources, Mines and Energy.  Once accepted, the warrant is registered on the title of the debtor.

At this point the creditor has to pay the cost of advertising and auctioning the real property to the enforcement officer.  This can be around $2,000.00 to $2,500.00.  Once the enforcement officer has these funds, then they will commence with executing the enforcement warrant.

These costs are recoverable – for example if the judgment debt is $50,000.00 and the enforcement costs are $2,500.00 then the bailiff will give the creditor $52,500.00 from the sale of the real property, plus the interest claimed – as a very rough example.

Finally, the enforcement officer will need a pay-out figure from the current mortgagee on the title.  This is to ensure that there is enough equity in the property to satisfy the debts and the enforcement costs.

A Warrant for Seizure and Sale of a Vehicle

Another popular warrant is a warrant for seizure and sale of a vehicle.

If the debtor has a vehicle registered in their name, and the vehicle is not exempt property, and there is enough unencumbered equity in the vehicle to satisfy the judgment debt and enforcement costs, then you may apply for a warrant for seizure and sale of that vehicle.

The creditor will need to perform a registration search on the QLD Motor Vehicle Register, and perform a search of the  Personal Property Securities Register (“PPSR”) to see if there are any registered interests over the vehicle (a finance company for example).

The creditor will also need an independent written valuation to assess the value of the vehicle.

If the judgment debtor owns the vehicle, and there are no security interests registered over the vehicle, then the enforcement officer may be directed to seize and sell the vehicle.

Once again, the enforcement officer will require security for their costs.  This is somewhere in the region of $1,000.00 to $1,500.00 to store and auction the vehicle.  Once again, these costs are recoverable after the sale of the vehicle.

If the property does not sell at auction, then the enforcement creditor can make an application for an order for sale at best price obtainable.

Moving Forward

We strongly suggest that you engage a suitable qualified legal practitioner who specialises in the enforcement of money orders.

If you have a QCAT decision which needs to be registered in the Magistrates Court and enforced, or a judgment, direction, decision or determination of the Court to be enforced then contact our dedicated enforcement lawyers today.

Once you have all of the information, you can get your debt recovery solicitor to apply for this or another enforcement warrant, including:

1. Enforcement warrant for the redirection of debts.
2. Enforcement warrant for redirection of earnings.

Frequently Asked Questions

See below for some frequently asked questions regarding a warrant for seizure and sale of property.

What is Exempt Property?

Rule 828(1) of the UCPR states that:

A court may issue an enforcement warrant authorising an enforcement officer to seize and sell in satisfaction of a money order all real and personal property (other than exempt property) in which the enforcement debtor has a legal or beneficial interest.

Exempt property has the same meaning as given to it by the section 116(2) of the Bankruptcy Act 1966 (CTH) and Regulations 27 to 30 of the Bankruptcy Regulations 2021 (CTH).

These sections of bankruptcy legislation contain a number of instances where property is exempt property.  The relevant property exempt from a warrant for seizure and sale of property includes but not limited to:

1. Section 27 – Household property that is not available for payment of debts.
2. Section 28 – Personal property with sentimental value that is not available for payment of debts.
3. Section 29 – Tools that are not available for payment of debts.
4. Section 30 – Motor vehicles that are not available for payment of debts (worth less than $8,100).

Who is an Enforcement Officer?

Schedule 5 of the Supreme Court of Queensland Act 1991 (Qld) says:

“enforcement officer” for a court, means the sheriff, a deputy sheriff or a bailiff of the court.

That means that any of the above can enforce a warrant for seizure and sale of property.

How long does an Enforcement Warrant last?

An enforcement warrant for seizure and sale of property is valid for one (1) year after it is issued.

If the enforcement warrant for seizure and sale of property is not satisfied within one (1) year the creditor can renew the warrant by application to the court for a further period not exceeding one (1) year.

This application is made pursuant to rule 821 of the UCPR.

Is there a Priority of Enforcement Warrants?

Yes, if two (2) or more enforcement warrants for seizure and sale of property are filed around the same time, the earliest has priority over the later warrant.

Rule 823 of the UCPR deals with the priority of enforcement warrants.

What Happens if the Debtor Pays before the Sale?

If the debtor finds some money to pay the creditor, then the enforcement officer must not sell the property.  Rule 830 of the UCPR says:

An enforcement officer must not sell property seized under an enforcement warrant if, at or before the sale, the enforcement debtor pays to the enforcement officer—

(a) the amount owing under the order, including interest; and

(b) the costs of enforcement then known to the enforcement officer; and

(c) an amount set by the enforcement officer as security for the enforcement creditor’s other costs of enforcement.

This means that the debtor must pay the judgment debt, interest, and the cost of enforcement.  This is going to be significantly more than the judgment debt.

If the debtor does not pay all of those costs, then the enforcement officer can still sell the property.

What Costs are able to be Claimed?

Rule 797 of the UCPR says:

(1) The costs of enforcement of a money order are recoverable as part of the order.

(2) Interest on an order debt is recoverable as part of the money order.

So, the costs on the Court scale are recoverable, and interest as calculated above is also claimable.

These are added to the judgment debt and previous costs incurred.

What if the Debtor Owns the Property Jointly?

If the debtor is a joint owner in the property, then it becomes very difficult for the enforcement officer to seize and sell the property.

Best practice is to ensure that the debtor only owns the property, and that there is clear title to that property.

How much does an Enforcement Warrant Cost?

A UCPR enforcement warrant has no fee with the Court.

You will need to pay the estimated costs of the enforcement officer up-front.

These costs can include:

1. Advertising and auction expenses;
2. Seizure expenses, e.g. hire of a tow truck, or engaging a removal firm;
3. Storage of the property – vehicle for example;
4. The amount owing to the creditor pursuant to the warrant, costs and interest;
5. The bailiff’s execution fees and expenses – such as travel, the bailiff’s time and any other expenses incurred by the bailiff while executing the warrant.

Any remaining balance after the enforcement officer has paid for everything, is repaid to the debtor.

What happens if the debtor disputes the warrant for seizure and sale?

If a debtor disputes the warrant for seizure and sale, they may file an application with the court challenging the warrant’s validity or enforcement process. The debtor must provide substantial evidence or legal grounds for their dispute, such as errors in the warrant’s issuance or a claim that the property is exempt. The court will then review the case and decide whether to uphold, modify, or cancel the warrant. During this dispute process, enforcement actions may be temporarily halted until the court reaches a decision.

Can a creditor seize and sell property that is under lease or rent to a third party?

Seizing and selling property that is leased or rented to a third party involves additional legal complexities. The creditor must consider the terms of the lease or rental agreement and the rights of the third party. In some cases, the lease may be terminated upon sale, or the new owner may assume the role of the landlord. However, specific legal advice is necessary to navigate these situations, as they can vary based on the property type and existing contractual agreements.

How is the sale price of the seized property determined?

The sale price of seized property is typically determined through a valuation process conducted by a professional valuer or through market analysis. For real estate, this might involve a comparative market analysis or a formal appraisal. For vehicles and other personal property, market value or expert assessments are used. The goal is to achieve a fair market price that reflects the property’s current value, ensuring that the creditor recovers the owed amount while also being fair to the debtor.

What occurs if the sale proceeds exceed the debt amount?

If the sale proceeds exceed the debt amount, the surplus is returned to the debtor. After the auction, the enforcement officer deducts the owed debt amount, including any interest and enforcement costs, from the sale proceeds. The remaining balance, if any, is legally owed to the debtor and must be paid to them. This process ensures that the debtor receives any excess funds after the satisfaction of the debt.

Are there any alternatives to the seizure and sale of property for debt recovery?

Yes, there are alternatives to the seizure and sale of property for debt recovery. These can include entering into a payment plan, where the debtor agrees to pay the debt in instalments, or seeking a garnishee order, where a debtor’s earnings or bank accounts are directed to pay the debt. Creditors may also consider mediation or negotiation to reach a mutually agreeable solution. These alternatives can be less confrontational and preserve the debtor-creditor relationship.

What rights do debtors have during the enforcement process?

Debtors have several rights during the enforcement process, including the right to receive notice of the enforcement actions, the right to dispute the warrant or the amount owed, and the right to claim certain properties as exempt from seizure. They also have the right to attend the auction and receive any surplus from the sale proceeds. It’s important for debtors to be aware of these rights and seek legal advice if they feel their rights are being infringed upon during the enforcement process.

There are a number of complicated steps that need to happen before a Court Bailiff can execute a warrant for seizure and sale of property. We strongly recommend engaging a legal professional