105AEffect of recording writ

#### 105A Effect of recording writ 105A Effect of recording writ > > (1) Subsection (2) does not apply to a dealing affecting land in respect of which a writ is recorded under section 105 where the dealing is— > > > > > (a) a transfer giving effect to a sale under the writ, > > > > > (b) a dealing on which is endorsed a consent under section 113 (6) (b) of the [Civil Procedure Act 2005](/view/html/inforce/current/act-2005-028), > > > > > (c) an application under Part 4A for cancellation of a caution, > > > > > (d) a transfer referred to in section 53 (3) executed pursuant to a right or covenant stipulated in a lease that was recorded in the Register before the writ was so recorded, > > > > > (e) a dealing which, upon registration, will record the determination of a registered lease, > > > > > (f) a dealing by a mortgagee or chargee in exercise of the mortgagee’s or chargee’s powers under a mortgage or charge that was recorded in the Register before the writ was so recorded, > > > > > (g) a postponement of mortgage where each of the relevant mortgages was recorded in the Register before the writ was so recorded, > > > > > (h) an order for foreclosure issued under section 62 (1), > > > > > (i) an application for the recording under section 66 (1) of the satisfaction or discharge of an annuity, rent-charge or sum of money secured by a registered charge, > > > > > (j) a dealing referred to in a provision of section 74H (5), > > > > > (k) an order or transfer referred to in section 85 (1), > > > > > (l) an office copy of an order referred to in section 86 (1), > > > > > (m) a dealing referred to in section 86 (3), > > > > > (n) an application under section 90, > > > > > (o) a dealing by The Official Receiver in Bankruptcy constituted under the [Bankruptcy Act 1966](http://www.legislation.gov.au/) of the Commonwealth, > > > > > (p) a dealing the registration or recording of which is ordered or directed under section 122 (4), 124 or 138, > > > > > (q) an application under section 105D for cancellation of the recording of a writ, or > > > > > (r) a notification in the Gazette whereby land becomes Crown land within the meaning of the [Crown Land Management Act 2016](/view/html/inforce/current/act-2016-058). > > > > > (s) (Repealed) > > > (2) Where a writ is recorded under section 105 and a dealing (other than a dealing to which, by the operation of subsection (1), this subsection does not apply) that affects the land to which the recording relates is lodged for registration within the protected period, the Registrar-General shall not, during the protected period, register the dealing unless the writ is referred to in the dealing as if it were a prior encumbrance. > > > (3) Notwithstanding anything in subsection (7), where a writ has been recorded under section 105 and a transfer by the judgment debtor is lodged for registration, being a transfer that— > > > > > (a) is in registrable form, > > > > > (b) comprises the whole of the land to which the recording relates, and > > > > > (c) is accompanied by an associated agreement for sale endorsed with the relevant consent under section 113 (6) (b) of the [Civil Procedure Act 2005](/view/html/inforce/current/act-2005-028), > > > > the Registrar-General shall register the transfer and cancel the recording of the writ. > > > (4) Notwithstanding anything in subsection (7), where a writ has been recorded under section 105 and a transfer or mortgage by the judgment debtor is lodged for registration, being a transfer or mortgage that— > > > > > (a) is in registrable form, > > > > > (b) in the case of a transfer, comprises part of the land to which the recording relates or, in the case of a mortgage, comprises the whole or part of that land, > > > > > (c) in the case of a transfer, is accompanied by an associated agreement for sale endorsed with the relevant consent under section 113 (6) (b) of the [Civil Procedure Act 2005](/view/html/inforce/current/act-2005-028), and > > > > > (d) in the case of a mortgage, is endorsed with the relevant consent under section 113 (6) (b) of the [Civil Procedure Act 2005](/view/html/inforce/current/act-2005-028), > > > > the Registrar-General shall register the transfer or mortgage. > > > (5) Where— > > > > > (a) a writ which has been recorded in the Register is referred to in a dealing as if it were a prior encumbrance, and > > > > > (b) a transfer in registrable form pursuant to a sale under the writ is lodged for registration, > > > > the Registrar-General shall, whether or not— > > > > > (c) the dealing referred to in paragraph (a) has been registered, or > > > > > (d) the judgment debtor named in the writ is registered as proprietor of the land comprised in the transfer referred to in paragraph (b), > > > > make such recordings in the Register as will register the transferee under the transfer referred to in paragraph (b) as proprietor of the land comprised in that transfer, freed from any estate or interest created by the dealing referred to in paragraph (a). > > > (6) Where a writ recorded under section 105 has not, within the protected period, been executed by sale of the land to which the recording relates, a dealing with that land lodged for registration before the writ is so executed may be registered notwithstanding the recording of the writ. > > > (7) Where a writ recorded under section 105 is, after the expiration of the protected period, executed by sale of all or part of the land to which the recording relates and a transfer pursuant to the sale is lodged for registration— > > > > > (a) the Registrar-General shall register the transfer under section 105B (1) if, at the time the transfer is lodged— > > > > > > > (i) the judgment debtor named in the writ is registered as proprietor of the whole of the land comprised in the transfer, > > > > > > > (ii) the transfer is in registrable form, and > > > > > > > (iii) no dealing creating or disposing of an estate or interest in the whole or part of the land comprised in the transfer and expressed to be for valuable consideration is awaiting registration, > > > > > > and shall so register the transfer notwithstanding that, at the time it is lodged, a dealing creating or disposing of an estate or interest in the whole or part of the land comprised in the transfer but not expressed to be for valuable consideration is awaiting registration, > > > > > (b) the Registrar-General shall refuse to register the transfer if— > > > > > > > (i) the judgment debtor named in the writ is not, at the time the transfer is lodged, registered as proprietor of any of the land comprised in the transfer, and > > > > > > > (ii) the person who is, at that time, registered as proprietor of any of that land became so registered pursuant to a dealing expressed to be for valuable consideration, > > > > > > unless the writ was referred to in the dealing referred to in subparagraph (ii) as if it were a prior encumbrance, > > > > > (c) the Registrar-General shall refuse to register the transfer if, at the time it is lodged— > > > > > > > (i) the judgment debtor named in the writ, or a transferee from that judgment debtor pursuant to a transfer not expressed to be for valuable consideration, is registered as proprietor of part only of the land comprised in the transfer, and > > > > > > > (ii) another person registered as proprietor of some other part of that land became so registered pursuant to a dealing expressed to be for valuable consideration, > > > > > > unless— > > > > > > > (iii) the writ was referred to in the dealing referred to in subparagraph (ii) as if it were a prior encumbrance, or > > > > > > > (iv) all the land referred to in subparagraph (ii) is excluded from the transfer, > > > > > > and the Registrar-General shall so refuse notwithstanding that the transfer would, but for this paragraph, be in registrable form, > > > > > (d) the Registrar-General shall refuse to register the transfer if, at the time it is lodged, the whole of the land comprised therein is the subject of another transfer that— > > > > > > > (i) is awaiting registration, > > > > > > > (ii) is in registrable form, > > > > > > > (iii) is expressed to be for valuable consideration, and > > > > > > > (iv) is not a transfer that, upon registration, would operate only to create or release an easement or profit à prendre, > > > > > > unless that other transfer is withdrawn from registration or the writ is referred to therein as if it were a prior encumbrance, > > > > > (e) the Registrar-General shall refuse to register the transfer if, at the time it is lodged, part of the land comprised therein is the subject of another transfer that is awaiting registration, is in registrable form, is expressed to be for valuable consideration and is not a transfer that, upon registration, would operate only to create or release an easement or profit à prendre unless— > > > > > > > (i) that other transfer is withdrawn from registration, or > > > > > > > (ii) that part of the land is excluded from the first-mentioned transfer, > > > > > (f) the Registrar-General shall refuse to register the transfer if, before it was lodged, a dealing (not being a transfer or, if it is a transfer, being a transfer that operated only to create or release an easement or profit à prendre) by the judgment debtor named in the writ expressed to be for valuable consideration and creating or disposing of an estate or interest in the whole or part of the land comprised in the first-mentioned transfer has been registered unless that estate or interest is referred to in the first-mentioned transfer in a memorandum of prior encumbrances, > > > > > (g) the Registrar-General shall refuse to register the transfer if, before the transfer was lodged, a dealing (not being a transfer or, if it is a transfer, being a transfer that, upon registration, would operate only to create or release an easement or profit à prendre) expressed to be for valuable consideration and creating or disposing of an estate or interest in the whole or part of the land comprised in the transfer is awaiting registration unless— > > > > > > > (i) that dealing is withdrawn from registration, or > > > > > > > (ii) that estate or interest is referred to in the first-mentioned transfer in a memorandum of prior encumbrances. > > > (8) Where— > > > > > (a) a writ recorded under section 105 is, after the expiration of the protected period, executed by sale of the whole or part of the land to which the recording relates, > > > > > (b) a transfer in registrable form pursuant to the sale is lodged for registration, and > > > > > (c) a dealing (including another transfer but not being a dealing expressed to be for valuable consideration) by the judgment debtor named in the writ was lodged for registration after the recording of the writ, being a dealing that— > > > > > > > (i) creates or disposes of an estate or interest in the whole or part of the land comprised in the transfer referred to in paragraph (b), and > > > > > > > (ii) at the time the transfer referred to in paragraph (b) was lodged for registration, had been registered or was awaiting registration, > > > > the Registrar-General shall register the transfer referred to in paragraph (b) and— > > > > > (d) where the dealing referred to in paragraph (c) has been registered—cancel its registration, or > > > > > (e) where the dealing so referred to is awaiting registration—reject it, > > > > unless— > > > > > (f) where that dealing is a transfer that affects part only of the land comprised in the transfer referred to in paragraph (b)—the estate or interest created or disposed of by the dealing is excluded from the transfer so referred to, or > > > > > (g) in any other case—that estate or interest is referred to in a memorandum of prior encumbrances in the transfer so referred to. > > > (9) In this section, protected period, in relation to a writ, means the period— > > > > > (a) that begins when the writ is recorded in the Register, and > > > > > (b) that ends at the expiration of 6 months after the writ is recorded in the Register, or on the expiration of the writ, whichever first occurs. > > **s 105A:** Ins 1976 No 96, Sch 10 (6). Am 1979 No 164, Sch 17 (5); 1986 No 167, Sch 2 (14); 1987 No 243, Sch 1 (11); 1988 No 20, Sch 16 (7); 1989 No 169, Sch 7; 2000 No 28, Sch 1 \[10\]; 2005 No 28, Sch 5.40 \[5\]–\[15\]; 2006 No 58, Sch 1.26 \[2\] \[3\]; 2015 No 23, Sch 1.5 \[11\]; 2017 No 17, Sch 4.82 \[12\]; 2018 No 75, Sch 2 \[16\] \[17\].