LOCAL GOVERNMENT ACT 1995 - SCHEDULE 6.3
LOCAL GOVERNMENT ACT 1995 - SCHEDULE 6.3
[Section 6.68(3)]
1 . Conditions for exercise of power of sale of
land
(1) A local government
is not to exercise the power of sale until it has caused notice requiring
payment of the rates or service charges owing in respect of the land —
(a) to
be served on the owner of the land by being given to him or her or by being
sent by certified mail to the address, if any, appearing in a register kept
under the Transfer of Land Act 1893 or in a memorial or record kept under the
Registration of Deeds Act 1856 relating to the land or by being advertised
under subclause (3); and
(b) to
be served on such other persons as appear by the records which relate to
estates and interests in land to have an estate or interest in the land, by
being given to, or by being sent by certified mail to, each of them at their
address, if any, appearing in the record, or by being so advertised; and
(c) to
be published on the local government’s official website and kept on the
website for not less than 35 days.
(2) The local
government is to cause the notice requiring payment —
(a) to
be in writing and be dated and signed by the CEO; and
(b) to
specify the land in respect of which the rates or service charges are owing;
and
(c) to
specify the total amounts owing in respect of rates or service charges of
which payment is required; and
(d) to
include a statement that in default of payment of the amounts specified in the
notice, the land will be offered for sale by public auction after the
expiration of 3 months from the date of the notice at a time appointed by the
local government; and
(e) to
be in, or substantially in, the form prescribed unless subclause (3) applies.
(3) If in the case of
a person required by this clause to be served, no sufficient address appears
in a register kept under the Transfer of Land Act 1893 or in a memorial or
record kept under the Registration of Deeds Act 1856 , the local government
is to cause the notice requiring payment in, or substantially in, the
prescribed form to be served on that person by local public notice and may
include in that notice land belonging to more than one owner.
(4) The local
government is to appoint a time not less than 3 months and not more than 12
months from the service of the notices required by this clause as the time at
which the land may be offered for sale by public auction.
[Clause 1 amended: No. 81 of 1996 s. 153(1); No.
60 of 2006 s. 144(4); No. 16 of 2019 s. 73.]
(1) The local
government is to give Statewide public notice of the sale —
(a) in,
or substantially in, the prescribed form; and
(b) by
such other means, if any, as the local government considers is necessary or
desirable.
(2) In the Statewide
public notice the local government —
(a) may
include land owned by more than one owner; and
(b) is
to so describe the land and improvements, if any, on the land, as to identify
the land and to convey to persons likely to be interested in the sale the
condition of the land and improvements.
(3) The local
government is to deliver a memorial of the Statewide public notice to the
Registrar of Titles or to the Registrar of Deeds and Transfers, as the case
requires, who is to register the memorial and endorse or note the title and
land register or record, in respect of each piece of land comprised in the
memorial.
(4) When the memorial
is registered the Registrar of Titles, or the Registrar of Deeds and
Transfers, as the case requires, is prohibited from registering and from
accepting for registration an instrument affecting the land without the
consent of the local government, until the land ceases under section 6.69 or
clause 7 to be bound by this subclause but that prohibition does not extend
beyond 12 months from the day on which the memorial is so delivered.
[Clause 2 amended: No. 47 of 2011 s. 16.]
The power of sale
includes —
(a)
power to sell the whole or part of the land either together or in lots —
(i)
by public auction; or
(ii)
by private contract, if having been offered for sale by
public auction, it has not been sold,
subject to such terms
and conditions with respect to the payment of the purchase money or any other
matter, including power to fix a reserve price, as the local government thinks
fit; and
(b)
power to vary a contract of sale by agreement with the other party to the
contract, and to buy in at auction; and
(c)
power to rescind a contract for sale on default by the other party to the
contract, and to resell without being answerable for loss occasioned by the
rescission and resale; and
(d)
power to make such thoroughfares and to grant such easements of right-of-way
or drainage over the land as the circumstances of the case require and the
local government thinks fit.
4 . Power of local government to transfer or
convey land
(1) A local government
exercising the power of sale of any land has power —
(a) by
transfer, where the land is under the Transfer of Land Act 1893 ; and
(b) by
deed or transfer, where the land is not under that Act,
to transfer or convey
to the purchaser an indefeasible estate in fee simple subject only to the
encumbrances specified in section 6.75(1)(c), (d) or (e).
(2) The Registrar of
Titles or the Registrar of Deeds and Transfers may register a transfer or
conveyance of land by a local government under this clause if the transfer is
in the approved form and the conveyance is acceptable to the Registrar of
Deeds and Transfers.
[(3) deleted]
[Clause 4 amended: No. 81 of 1996 s. 153(1); No.
47 of 2011 s. 16; No. 21 of 2022 s. 60.]
5 . Application of purchase money
Where a local
government has exercised its power of sale it is required to apply the
proceeds of sale in the following manner —
(a)
firstly — in payment of the costs, charges and expenses properly
incurred by the local government in or incidental to the sale or attempted
sale or the exercise of any other power conferred upon the local government by
Part 6, Division 6, Subdivision 6 or this Schedule; and
(b)
secondly — in payment of —
(i)
unpaid rates or service charges, for the time being due
to or imposed by the local government in respect of the land; and
(ii)
costs and other money, if any, due to or imposed in
favour of the Crown in right of the State or a department, agency, or
instrumentality of the Crown in right of the State; and
(iii)
other amounts due to the local government under this or
another written law,
in respect of the land
at the time of the sale, but where the payments required by paragraph (a) to
be made have been made, and the balance of the money then remaining is not
sufficient for the payment in full of the items required by this paragraph to
be made, the local government is to distribute the balance of the money so
remaining, between the Crown, the department, the agency, the instrumentality,
and the local government, pro rata with the amounts of their claims,
respectively, unless the Governor, or the Minister controlling the department,
agency, instrumentality as the case requires, consents to rank after the local
government; and
(c)
thirdly — in payment of the vendor’s costs and expenses of and
incidental to conferring upon the purchaser a title to the land; and
(d)
fourthly — in or towards the discharge of a charge, if any, on the land
under a written law relating to the construction of drains and fittings to
connect the land with a sewer; and
(e)
fifthly — in or towards the discharge of other mortgages and
encumbrances on the land, both registered and unregistered, according to their
priorities at law so far as they can be ascertained by the local government;
and
(f)
sixthly — in payment of the residue of the money within 12 months after
the local government has received it to —
(i)
the person who would, but for the proceedings for sale,
be entitled to the land; or
(ii)
if there are several persons who would be so entitled,
then to those persons in the proportions in which they would be respectively
so entitled,
but if —
(I) a person is entitled to an estate in
reversion or remainder in the land, the local government may pay that residue
into the Supreme Court under section 99 of the Trustees Act 1962 ; and
(II) within that
period of 12 months the local government has not paid the residue to the
person entitled to it, it is to, on the expiration of that period, pay that
residue into the Supreme Court under that section of that Act; and
(III) at the
expiration of 6 years after the money is so paid into the Supreme Court,
proceedings have not been commenced or are not pending and the Court has not
made an order to the contrary the money is to be paid into the Consolidated
Account.
[Clause 5 amended: No. 77 of 2006 s. 4.]
6 . Receipt by local government sufficient
discharge
A receipt in writing
issued by the local government is a sufficient discharge for money paid to the
local government on the exercise by it of the power of sale and a person
paying it is not bound to inquire whether money remains due to the local
government for rates or service charges or otherwise in respect of the land
sold.
7 . If sale not completed within 12 months after
commencement, proceedings lapse
(1) If at the
expiration of 12 months from the date the land is offered for sale pursuant to
the power of sale a contract for sale has not been entered into the
proceedings for the exercise of the power of sale cease to have effect.
(2) Where, under
subclause (1), proceedings have ceased to have effect, the local government
may again commence proceedings for sale of the land and the provisions of this
Schedule relating to the procedure for the exercise of the power of sale again
apply.
8 . Transfer of land to Crown or local government
under s. 6.71
(1) The Registrar of
Titles or the Registrar of Deeds and Transfers may register a transfer or
conveyance of land by a local government under section 6.71, or by the
Minister under section 6.74(3), if the transfer is in the approved form or the
conveyance is acceptable to the Registrar of Deeds and Transfers.
[(2) deleted]
(3) Notwithstanding
the provisions of the Transfer of Land Act 1893 , or any other written law
—
(a) upon
the registration of a transfer or conveyance pursuant to the power referred to
in section 6.64(1)(c), the land becomes, and may be dealt with as, Crown land
free from mortgages, leases, tenancies, encumbrances, charges and reservations
of every kind; and
(b) the
registration of the transfer or conveyance pursuant to the power referred to
in section 6.64(1)(d) vests in a local government an indefeasible estate in
fee simple in the land subject only to the encumbrances specified in
section 6.75(1)(c), (d) or (e).
(4) If the land
referred to in subclause 3(a) is under the Transfer of Land Act 1893 , the
Registrar of Titles is to cancel the certificate of title to the land and
remove the land from the operation of that Act and thereafter the land may be
dealt with as if it had never been alienated from the Crown.
(5) Duty under the
Duties Act 2008 is not chargeable on the transfer or conveyance.
(6) The procedure for
the exercise of the powers referred to in sections 6.71, 6.74 and 6.75 is to
be as prescribed.
[Clause 8 amended: No. 81 of 1996 s. 153(1); No.
49 of 2004 s. 64(2) and (3); No. 12 of 2008 Sch. 1 cl. 21; No. 47 of 2011
s. 16; No. 21 of 2022 s. 61.]