Enforcement Warrant - Seizure and Sale of Property (Payee) - Section 106A Instrument Execution Track

The Process at a Glance: The lawyer assesses the debtor's default, drafts the transfer documents, and issues a final 14-day compliance demand. If the default persists and the existing orders do not already contain a section 106A provision, the lawyer lodges an Application - Enforcement and supporting affidavit seeking a section 106A order (Rule 11.55 of the Family Law Rules) by email with the National Enforcement List, and serves the application, affidavit and Enforcement Hearings brochure personally on the debtor. Where the orders already contain a section 106A provision, a Chambers Enforcement Request (an affidavit and the instrument) is lodged instead and does not have to be served. The court appoints an officer of the court or other person to sign the instrument. That person signs the document, which is then lodged at the state land registry to execute the transfer.

Key Legislation and Case Law: Governing law is Section 106A of the Family Law Act 1975 (Cth). If a party fails to execute an instrument ordered by the court, the court may appoint an officer of the court or other person to execute the deed or instrument, which has the same force and validity as if executed by the defaulting party (s 106A(1) and (3)). The court may make such order as it considers just about the costs and expenses of preparing and executing the instrument (s 106A(4)). The power extends only to a deed or instrument.

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