New South Wales Consolidated Acts

REAL PROPERTY ACT 1900 - SECT 105

105 Recording of writ in Register

(1) A writ, whether or not it is recorded in the Register, does not create any interest in land under the provisions of this Act.

(1A) An estate or interest in land under the provisions of this Act, being an estate or interest arising under a contract of sale under a writ, is not extinguished or otherwise affected merely because the writ subsequently expires.

Note: Completion of the sale, including execution of the transfer, is authorised by section 116 of the Civil Procedure Act 2005 .

(2) Subject to subsections (3), (5) and (6), the Registrar-General may record a writ in the Register pursuant to an application in the approved form which:

(a) identifies, by reference to a folio of the Register or to a registered dealing, the land in respect of which the recording is sought,

(b) is accompanied by:

(i) a sealed copy of the writ, or

(ii) a copy of a sealed copy of the writ certified by the Sheriff to be a true copy,

(c) incorporates, or is accompanied by, a statutory declaration that, to the satisfaction of the Registrar-General, identifies the judgment debtor named in the writ with the registered proprietor of the land comprised in that folio or registered dealing, and

(d) is lodged before the date shown on the writ as the date on which the writ expires.

(3) Where application is made under subsection (2) for the recording of a writ and it appears to the Registrar-General that the land to which the application relates is held by the registered proprietor in a fiduciary capacity the Registrar-General may refuse to record the writ unless it is proved to the Registrar-General’s satisfaction that the writ was issued pursuant to a judgment against the registered proprietor in that fiduciary capacity.

(4) A writ recorded in the Register with respect to a registered mortgage, charge or lease may be executed by the sale and transfer, in the approved form, of the mortgage, charge or lease.

(5) Where a writ is recorded in the Register, the Registrar-General shall not, unless the Registrar-General cancels that recording, record in the folio of the Register, or upon the registered dealing, upon which the writ was recorded a renewal of the writ or a second or subsequent writ that was issued on the same judgment.

(6) Where, at the time of lodgment of an application for the recording of a writ, a dealing for valuable consideration affecting the land identified under subsection (2) (a) in the application is awaiting registration and is in registrable form, the Registrar-General shall not record the writ unless:

(a) the dealing is withdrawn from registration, or

(b) the dealing does not dispose of the whole estate and interest in the land so identified and the application indicates to the satisfaction of the Registrar-General that, unless the dealing is subsequently withdrawn from registration, its registration is to precede the registration of any transfer giving effect to a sale under the writ.