A warrant of execution is a process of the Court which issues to enforce a judgment or Order of the Court.
Orders 68 of the Supreme Court (General Civil Procedure) Rules 2015 (Rules) governs warrants of execution generally and sets out the procedure to issue a warrant.
There are three types of warrants prescribed under the Rules:
- Warrant of Seizure and Sale (Order 69): to enforce a judgment for the payment of money other than into Court and directs the Sheriff to take and sell the property of the person bound. See further information below.
- Warrant of Possession (Order 70): to enforce a judgment for possession and directs the Sheriff to cause the plaintiff to have possession of the subject land.
- Warrant of Delivery (Order 66): to enforce a judgment for the delivery of goods and a judgment for the delivery of goods or the payment of their assessed value. This directs the Sheriff to cause the subject goods to be delivered to the plaintiff or, if the Sheriff cannot do this to levy the property of the person bound for the assessed value of the goods.
Generally, a warrant of execution will be valid for the purpose of execution for one year after the day it is issued (Rule 68.05(1)).
A warrant cannot be issued without leave of the Court in certain circumstances (refer to Rule 68.02).
Warrants of Seizure and Sale
See Orders 68 and 69 of the Rules.
A warrant of seizure and sale can be used to enforce an order or judgment for the payment of money and directs the Sheriff to take and sell the property of the person bound.
A judgment or order can include, but is not limited to:
- a Supreme Court order for the payment of money
- a Magistrates’ Court order for the payment of money and registered in the Supreme Court pursuant to section 112 of the Magistrates’ Court Act 1989 (Vic)
- an interstate judgment for the payment of money and registered in the Supreme Court pursuant to section 105 of the Service and Execution of Process Act 1992 (Cth)
Issuing a Warrant of Seizure & Sale
1. Obtain your Court Order
If you wish to enforce a judgment of another jurisdiction, you should first make enquiries with that Court to obtain a copy of that judgment.
If the judgment is from the Magistrates' Court, you must first make enquiries with the Magistrates' Court to obtain a certificate for the Supreme Court in accordance with section 112 of the Magistrates’ Court Act 1989 (Vic).
2. Complete a Warrant of Seizure and Sale (Form 68A)
- To enforce an order of the Supreme Court, use a Warrant of Seizure and Sale (Form 68A) (Supreme Court Order)
- To enforce an order of the Magistrates' Court, use a Warrant of Seizure and Sale (Form 68A) (Magistrates' Court Order)
- Note: costs that may be claimed in paragraph (b) of the warrant are provided for in the Costs on Default Judgments and Warrants
3. Complete an affidavit in support
An affidavit in support is required which is sworn/affirmed within 14 days of the date of filing the warrant which states (under Rule 68.04(3)(c)):
- the date of the judgment or order
- the amount, including any interest accrued and any costs, due and payable in respect of the judgment at the date of swearing of the affidavit with particulars showing how that amount is calculated or made up. See the current penalty interest rates.
- the daily amount of interest, if any, which, subject to any future payment under the judgment, will accrue after the date of swearing the affidavit in respect of the judgment amount and costs (this is calculated on the balance of the judgment).
- If you are seeking to enforce the warrant against real property, the affidavit must give evidence to satisfy the Prothonotary that the judgment debtor is the registered proprietor of land referred to in a folio or folios of the Register kept under the Transfer of Land Act 1958 (Vic). A land title search of the relevant property should also be exhibited to the affidavit to show that the judgment debtor is the registered proprietor.
4. File your documents and pay the court fee(s)
In RedCrest, file the:
- Warrant of seizure and sale
- Affidavit in support
Note: if you have an order or judgment from another jurisdiction, you are required to commence a new proceeding by filing the judgment, order or certificate for the Supreme Court. You may file this prior to filing your warrant and affidavit in support.
Once your documents have been approved, a sealed version will be emailed to you for service.
A fee is is payable for the filing of a warrant of seizure and sale and any certificate for the Supreme Court or interstate judgment. You will be required to authorise the relevant payment in PayPal after you have submitted your filing in RedCrest.
What happens next?
If the Court issues a warrant, you can send the sealed warrant of seizure and sale form and supporting documents to the Sheriff’s Office for enforcement. The Court will not send the warrant on your behalf.
Duration and re-issuing a warrant
Generally, a warrant of seizure and sale will be valid for the purpose of execution for one year after the day it is issued (Rule 68.05(1)).
If you seek to extend the period of validity of a warrant of seizure and sale before it is expired, then leave of the Court can be sought (Rule 68.05(2)).
If a warrant has expired or there were mistakes on the original warrant issued, the Prothonotary may re-issue a new warrant only after the original warrant is returned to the Court. If the original warrant is with the Sheriff, please make enquiries with the Sheriff's office for that original warrant's return.