notice of assignment nsw

Assignment and Novation

What are assignment and novation clauses.

The two main legal tools for the transfer of the rights and/or obligations under a contract to another party are: assignment, for the transfer of benefits; and novation, for the transfer of rights/benefits and obligations. Each has unique features that must be taken into account when deciding which is the preferred option.

Assignment and novation clauses

Assignment, novation and other dealings boilerplate clauses, non-assignment clauses, withholding consent to an assignment.

The two main legal tools for the transfer of the rights and/or obligations under a contract to another party are:

• assignment, for the transfer of benefits; and
• novation, for the transfer of rights/benefits and obligations

Each has unique features that must be taken into account when deciding which is the preferred option.

Assignment clauses

A contracting party at common law has a general right to assign its rights without any consent or approval from the other party (unless by its very nature the right is personal). An assignment clause may be included in an agreement to exclude or limit this common law right. In order for the assignment of rights by one party to not be exercised unilaterally without the knowledge of the other party, it is common for contracts to include a provision that a party can only assign its rights under the contract with the consent of the other party.

After assignment, the assignee is entitled to the benefit of the contract and to bring proceedings (either alone or by joining the assignor depending in whether the assignment is legal or equitable) against the other contracting party to enforce its rights. The assignee does not become a party to the contract with the promisor. As the burden or obligations of the contract cannot be assigned, the assignor remains liable post assignment to perform any part of the contract that has not yet been performed.

Novation clauses

By executing a novation, a party can transfer both its rights/benefits and obligations. At common law, the obligations under a contract can only be novated with the consent of all original contracting parties, as well as the new contracting parties. This is because the novation extinguishes the old contract by creating a new contract.

A novation clause will usually provide that a party cannot novate a contract without the prior written consent of existing parties. Including a novation clause in an agreement is designed to prevent oral consent to a novation, or consent being inferred from a continuing party’s conduct. However, a court will look to the substance of what has occurred, and such a clause is not effective in all situations.

It is possible for a novation clause to prospectively authorise a novation to be made by another party unilaterally to a party chosen by the novating party. The courts will give effect to a novation made in this manner provided it is authorised by the proper construction of the original contract.

Option 1 – Assignment, novation and other dealings – consent required

A party must not assign or novate this [deed/agreement] or otherwise deal with the benefit of it or a right under it, or purport to do so, without the prior written consent of each other party [which consent is not to be unreasonably withheld/which consent may be withheld at the absolute discretion of the party from whom consent is sought].

Option 2 – Assignment, novation and other dealings – specifies circumstances in which consent can reasonably be withheld

(a)   [ Insert name of Party A ] may not assign or novate this [deed/agreement] or otherwise deal with the benefit of it or a right under it, or purport to do so, without the prior written consent of [ insert name of Party B ], which consent is not to be unreasonably withheld . 

(b) [ Insert name of Party A ] acknowledges that it will be reasonable for [ insert name of Party B ] to withhold its consent under this clause if:

(i)      [ Insert name of Party B ] is not satisfied with the ability of the proposed assignee to perform [ insert name of Party A ]’s obligations under this [deed/agreement];

(ii)      [ Insert name of Party B ] is not satisfied with the proposed assignee’s financial standing or reputation;

(iii)     the proposed assignee is a competitor of [ insert name of Party B ]; or

(iv)       [ Insert name of Party B ] is in dispute with the proposed assignee .

Click  here  for information on how to use this boilerplate clause.

A non-assignment clause prevents a party or parties from assigning the benefit of the contract. Non-assignment clauses are generally effective if they have been clearly drafted.

Contracts commonly provide for assignment with the consent of the other party. Such provisions usually provide that consent must not be unreasonably withheld and, where there is no such proviso, one may be implied. Accordingly, if it is intended that a party may withhold its consent to an assignment for any reason whatsoever (including on unreasonable grounds) clear contractual language should be used.

A purported assignment that contravenes such contractual restriction may constitute a breach of contract and result in an ineffective assignment.

The ‘reasonableness’ of withholding consent to an assignment is assessed by an objective standard and given a broad and common sense meaning.

The relevant factors in assessing reasonableness will differ in each case and heavily depend on the particular circumstances, including the nature and object of the specific contract and the purpose of the non-assignment clause.  Relevant factors may include any defaults in obligations under the contract and the solvency and identity of the assignee.

A party’s actions in withholding consent will generally be considered unreasonable if the grounds relied upon to support the withholding are:

• extraneous or disassociated from the subject matter of the contract;
• materially inconsistent with any provision(s) of the contract; or
• based on collateral or improper considerations.

It is advisable, where withholding consent to an assignment, to clearly set out the reasons for withholding consent in a letter to the other party.

Home » Insights » Assigning the right to sue – the new provisions’

Assigning the right to sue – the new provisions’

Author: Thomas Russell

Service: Restructuring & Insolvency

External administrators of companies can now assign any right to sue that is conferred on them by the Corporations Act, for example voidable transaction claims and insolvent trading claims.

External administrators of companies can now assign any right to sue that is conferred on them by the Corporations Act, for example voidable transaction claims and insolvent trading claims. Previously these were considered rights that could only be utilised by the appointed liquidator and so could not be assigned. Now they can.

Thomas Russell ,  Partner  and  Brendan May ,  Lawyer  discuss these new changes and what they mean for insolvency practitioners.

When did this start?

• This has already begun. It commenced on 1 March 2017.

What legislation brought this about?

• The  Insolvency Law Reform Act 2016  (Cth) has introduced a  new schedule  to the  Corporations Act 2001  (Cth). The schedule is called “ Schedule 2 – Insolvency Practice Schedule (Corporations) ”( the Schedule ).
• The external administrator is able to assign his or her right to sue under section 100-5 of the Schedule.
• The  Bankruptcy Act 1966  (Cth) now also has a  Schedule 2  called “ Schedule 2 – Insolvency Practice Schedule (Corporations) . Section 100-5 similarly provides that any right to sue conferred upon a trustee of a debtor’s estate (including a bankrupt estate) can be assigned.

How does it happen?

• In the usual way anything is assigned, for example by Deed of Assignment. The right is broad, and – subject to one or two things – allows the external administrator to assign “ any right to sue that is conferred on the external administrator by this Act ”.
• if the external administrator’s action has already begun, the external administrator cannot assign the right to sue without the approval of the Court;
• before assigning any right to sue, the external administrator must give written notice to the creditors of the proposed assignment; and
• once assignment has been effected, a notice of assignment must be issued that complies with  s 12 of the  Conveyancing Act 1919  (NSW) . Note this is a piece of New South Wales legislation, however there are equivalent provisions in other state legislation.
• if the right is assigned pursuant to an arrangement that will extend for more than three months, for instance an assignment in exchange for, among other consideration, an uplift or success fee upon the entry of judgment or recovery of monies; or
• if the right being assigned is a debt due to the company (for instance a right to recover compensation for insolvent trading) and the circumstances of the assignment are such that this “debt” is effectively being compromised. There is (for obvious reasons) yet to be any case law on this situation but liquidators would be well advised to play it safe.

Who does this apply to?

• It applies to “External Administrators”. This is defined in item 5-20 of the Schedule:

5-20 Meaning of external administrator of a company

A person is an external administrator of a company if the person is:

(a) the  administrator of the company ; or

(b) the  administrator under a deed of company arrangement  that has been entered into in relation to the company; or

(c) the  liquidator of the company ; or

(d) the  provisional liquidator  of the company.

Note: A person is  not  an external administrator of a company for the purposes of this Schedule merely because the person has been appointed as a receiver, receiver and manager, or controller in relation to property of the company.

Why could this not happen before?

• The simple reason it couldn’t happen before is that people tried it, and the Courts said it couldn’t be done.
• A right to sue is known as a  chose in action . The  common law  had long held a distrust of assignment of choses in action. However  equity  permitted it to happen, and over time it became accepted. However, the ability to assign a chose in action has always been the exception, rather than the rule.
• The law has also had a historical wariness of “champerty” and “maintenance” – allowing a third party to meddle in and/or to profit off litigation. They used to be crimes and “torts” (unlawful acts).
• section  588M  (insolvent trading) the statute provides “The company’s liquidator may recover from the director, as a debt due to the company, an amount equal to the amount of the loss or damage”, or
• section  588FF  (voidable transactions) provides “Where, on the application of a company’s liquidator, a court is satisfied that a transaction is voidable…”

…and said that the statute says only a liquidator can bring the action, so we won’t let the liquidator assign it to someone else.

• This has now changed.

What could an external administrator already assign before these provisions?

• A liquidator of a company could (and still can) sell or otherwise dispose of, in any manner, property of the company pursuant to section  477(2)(c) .
• Common law rights of action, vesting in the liquidator, are considered to be property of the company. So an external administrator always had a right at common law to assign debts, and some other causes of action which we will discuss shortly.
• Likewise, straight-up debts (such as trading debts due by customers of the company) are, and always have been, assignable.
• The only condition with debts and other legal actions is that notice of the assignment must be given to the debtor in order to effect a legal assignment pursuant to  section 12  of the  Conveyancing Act 1919  (NSW). Without this, it is only an “equitable assignment”, that is, a partly-completed assignment that still needs to be completed by compliance with the correct legal procedure.
• Note that there is a general principle that claims for misleading and deceptive conduct cannot be assigned. The reason is that the relevant statutory provision giving a right to damages for loss suffered as a result of a breach (section 82 of the TPA, now section 236 of the  Australian Consumer Law ) does not provide for the award of damages in respect of a loss suffered by another, i.e. one that was not suffered by any party to the proceedings:  Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd  [2006] FCA 1352 .
• The good news is that there is a line of authority, including in NSW ( CBD Prestige Property Holdings No 3 Pty Ltd v Metropolitan Local Aboriginal Land Council  [2013] NSWSC 1005 ), that suggests a liquidator is a special exception to the general principle above. The bad news is that this is in conflict with other authority from other states and at federal level on the same point, meaning that the position is not settled as far as the law is concerned.
• If you are ever required to consider whether or not you are able to assign a claim for damages for misleading and deceptive conduct, specific legal advice should be sought and your advisor’s attention should be drawn to the two cases mentioned above.

What’s the big deal about notice and the  Conveyancing Act ?

• It must be an absolute assignment (so you cannot legally assign part of something, e.g. half a bank account if it was a debt);
• It must be in writing;
• It must be signed by the assignor; and
• Written notice must be given to the debtor or potential defendant. Note that the written notice has to come  after  the assignment, and it does not matter whether written notice comes from the assignor or the assignee, as long as somebody tells them ‘The right, title and interest to the claim against you has been assigned by  x  to  y ’.

What happens if notice is not given?

• If notice is not given, you only have an equitable assignment, not a legal assignment.
• This means legal title to that claim has not actually passed – only that (provided consideration has been paid) equity will treat it that it should have been passed. So the assignor technically retains legal title to the action, while the assignee has equitable title. The assignee can sue on the claim, but a rule of practice and procedure requires the assignor to be a party to the action.
• If the assignor is not joined in such an action, there are decisions (see  Jennings v Credit Corp Australia Pty Ltd As Assignee From Citicorp Person To Person Financial Services Pty Ltd  [2000] NSWSC 210 ) which have held that until the legal assignor is joined or notice given, the equitable assignee cannot recover under the claim. The easiest way if notice hasn’t been given but proceedings have commenced is just to give notice. It is then perfected into a legal assignment and will operate retrospectively.
• An equitable assignment is also susceptible of being defeated by other principles of equity (for example, if the equitable assignee does not come to court with ‘clean hands’).

Who will be interested in purchasing these claims?

• Litigation funders would seem to be the most obvious market for these claims.
• controlling the vote at a meeting of creditors (see Rule 75-110(4) of the bankruptcy IPRs re valuation of assigned claims, but note that no equivalent rule exists for corporations); or
• ensuring the claim is under the control of a friendly party, for asset protection reasons or to obtain a tax benefit.

Should you have any questions, please contact either Thomas Russell or Brendan May.

Thomas Russell

+61 2 9253 9906

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12 Assignments of debts and choses in action

Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal chose in action, of which express notice in writing has been given to the debtor, trustee, or other person from whom the assignor would have been entitled to receive or claim such debt or chose in action, shall be, and be deemed to have been effectual in law (subject to all equities which would have been entitled to priority over the right of the assignee if this Act had not passed) to pass and transfer the legal right to such debt or chose in action from the date of such notice, and all legal and other remedies for the same, and the power to give a good discharge for the same without the concurrence of the assignor: Provided always that if the debtor, trustee, or other person liable in respect of such debt or chose in action has had notice that such assignment is disputed by the assignor or anyone claiming under the assignor, or of any other opposing or conflicting claims to such debt or chose in action, the debtor, trustee or other person liable shall be entitled, if he or she thinks fit, to call upon the several persons making claim thereto to interplead concerning the same, or he or she may, if he or she thinks fit, pay the same into court under and in conformity with the provisions of the Acts for the relief of trustees.

What is a notice of assignment?

An assignment takes place when one party is holding a right to property, claims, bills, lease, etc., of another party and wishes to pass it along (or sell it) to a third party. As complicated as that sounds, it really isn’t. Strangely enough, many assignments can be made under the law without immediately informing, or obtaining the permission, of the personal obligated to perform under the contract. An example of this is when your mortgage is sold to another mortgage company. The original mortgage company may not inform you for several weeks, and they certainly aren’t going to ask your permission to make the sale.

If a person obligated to perform has received notice of the assignment and still insists on paying the initial assignor, the person will still be obligated to pay the new assignee according to the agreement. If the obligated party has not yet been informed of the assignment and pays the original note holder (assignor), the assignor is obligated to turn those funds over to the new assignee. But, what are the remedies if this doesn’t take place? Actually, the new assignee may find themselves in a difficult position if the assignor simply takes off with their funds or payment. They are limited to taking action against the person they bought the note from (assignor) and cannot hold the obligator liable. Therefore, it is important to remember that if any note or obligation is assigned to another party, each party should be well aware of their responsibilities in the transaction and uphold them according to the laws of their state. Assignment forms should be well thought out and written in a manner which prevents the failure of one party against another.

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Deed of Assignment vs Novation: A Comprehensive Guide

Home > Uncategorized > Deed of Assignment vs Novation: A Comprehensive Guide

• April 17, 2023

Deed of assignment and novation are two legal tools used to transfer contractual rights and obligations from one party to another. While both serve similar purposes, they differ in their implications and the extent of the transfer of rights and obligations. In this comprehensive guide, we will explore the key differences between the deeds of assignment and novation and provide insights into their respective uses.

Table of Contents

Deed of assignment and novation.

In the world of legal contracts, there are various tools available to transfer rights and obligations from one party to another. Two commonly used tools are deeds of assignment and novation. Both legal tools allow parties to transfer rights and obligations under a contract, but there are some differences between them.

A deed of assignment is a legal document that transfers the rights and obligations of one party to another party. It is often used in situations where one party wants to transfer its rights or obligations under a contract to another party without changing any other terms of the original contract. For example, if a homeowner wants to transfer their rights and obligations under a construction contract to a new contractor, they can use a deed of assignment to do so.

On the other hand, novation is a legal mechanism that allows parties to transfer both the rights and obligations of one party to another, and simultaneously replace one party in the original contract with a new party. In other words, novation replaces one party to the contract with another party, whereas a deed of assignment does not replace any party to the contract.

Novation is commonly used in situations where there is a change in ownership of a business or where a contractor wants to transfer its contractual obligations to a subcontractor. The novation process involves three parties: the original parties to the contract, the incoming party who will take over the obligations, and the outgoing party who will be released from their obligations.

In the following sections, we will delve deeper into the differences between the deeds of assignment and novation and explain how each legal tool works in practice.

Differences Between Deed of Assignment and Novation

When it comes to transferring rights and obligations under a contract, two legal tools commonly used are deeds of assignment and novation. Although both mechanisms involve the transfer of rights and obligations, they differ in various aspects, including the impact on the original contract and the consent required from the involved parties.

Rights and Obligations

Under a deed of assignment, the assignor transfers their rights and obligations to the assignee, but the original contract remains in force. In contrast, novation involves the creation of a new contract in which the original contract is extinguished, and a new contract is formed between the transferor, the transferee, and the obligor.

Original Contract

A deed of assignment does not affect the original contract between the assignor and the obligor, and the obligor must still perform their obligations to the assignee. In contrast, novation extinguishes the original contract, and the obligor’s obligations are owed to the transferee under the new contract.

New Contract or Deed

A deed of assignment does not require the creation of a new contract or deed, as the original contract remains in force. However, novation requires the creation of a new contract or deed, as the original contract is extinguished.

Consent Requirements

For a deed of assignment to be effective, the assignor must provide notice of the assignment to the obligor, but the obligor’s consent is not required. In contrast, novation requires the consent of all parties involved, including the transferor, the transferee, and the obligor.

It is crucial to understand the differences between a deed of assignment and a novation to choose the appropriate legal tool for transferring rights and obligations. Consider seeking legal advice before deciding which mechanism to use.

Novation in Detail

Novation is a legal process that transfers rights and obligations from one party to another. It differs from a deed of assignment in that it involves the substitution of a new party for an original party, rather than just the transfer of rights.

How a Novation Works

Novation requires the consent of all parties involved, including the new party that is taking on the rights and obligations. The process involves the following steps:

• Agreement: The parties involved must agree to the novation and the terms of the new arrangement.
• Documentation: A novation agreement must be drafted and signed by all parties involved.
• Communication: All relevant parties, such as banks or insurers, must be informed of the novation and give their consent.
• Implementation: The novation takes effect once all parties have signed the agreement and the necessary documentation has been completed.

Advantages and Disadvantages of Novation

There are several advantages to using novation in various situations, such as:

• It allows for the substitution of parties without the need for a new contract.
• It can simplify complex contractual arrangements.
• It can allow for a transfer of obligations to a party better equipped to fulfil them.

However, novation also has some potential drawbacks, such as:

• It requires the consent of all parties involved, which can be difficult to obtain.
• It can result in the loss of important rights or benefits for the original party.
• It can be more expensive and time-consuming than other legal tools.

Examples of Novation

Examples of novation include:

• When a new contractor takes over a construction project from the original contractor, assuming all the rights and obligations under the original contract.
• A subcontractor is working on a construction project for a main contractor. The subcontractor wants to assign the contract to another subcontractor due to financial difficulties. The main contractor agrees to novate the contract to the new subcontractor, who then takes over the subcontractor’s obligations and responsibilities.
• An engineering firm is contracted by a city to design and construct a new road. The engineering firm decides to sell the design and construction contract to another firm. The city agrees to novate the contract to the new firm so that the new firm can complete the project.
• A supplier has a contract with a contractor to supply building materials for a construction project. The supplier decides to sell the business to another company. The contractor agrees to novate the contract to the new company so that the new company can fulfil the supplier’s obligations under the contract.

Assignment in Detail

When a party to a contract transfers their rights and obligations to a third party, this is referred to as an assignment. The process of assignment is less complex than that of novation, as it does not require the formation of a new contract. Instead, a contract that already exists between two parties is simply transferred to a third party. Here are some details of the assignment:

How an Assignment Works

The process of assignment generally involves the following steps:

• The original parties to the contract must agree to the assignment.
• The assignor (the party transferring their rights and obligations) must provide written notice of the assignment to the other party.
• The assignee (the third party taking over the rights and obligations) must accept the assignment in writing.

Advantages and Disadvantages of Assignment

Like novation, assignment has its advantages and disadvantages. Some of the benefits of using assignment include:

• Flexibility: Assignment is a more flexible process than novation, as it doesn’t require the formation of a new contract.
• Simplicity: The process of assignment is less complex and less time-consuming than that of novation.

However, there are also some disadvantages to using assignment:

• No release from liability: Unlike novation, assignment does not release the assignor from their obligations under the original contract.
• Lack of control: The original party to the contract may be concerned about losing control over who they are dealing with if an assignment takes place.

Examples of Assignment

Here are some examples of assignments in the construction industry:

• A subcontractor assigns their right to receive payment for their work to a third party, such as a lender, to secure a loan.
• A contractor assigns their right to receive payment from the owner to a supplier or vendor to pay for materials or equipment used in the project.
• A developer assigns their right to receive payments from buyers of individual units in a development to a lender to secure financing for the project.
• A contractor assigns their right to receive payment from the owner to a joint venture partner to share the risk and reward of the project.
• An owner assigns their right to receive payments from a contractor to a surety to secure a performance bond for the project.

No Assignment Clauses in Construction Contracts

No assignment clauses are common in construction contracts and can have significant implications for both parties involved. These clauses prevent the transfer of rights or obligations to a third party without prior consent from the other party. In the context of construction contracts, the party with the most interest in such clauses is the Principal, who is usually the owner of the project.

Purpose of No Assignment Clauses

There are several reasons why Principals include no assignment clauses in construction contracts. These include:

• Maintaining control: By preventing the assignment of rights and obligations, the Principal maintains control over the project and ensures that all decisions and actions are made by the original contracting parties.
• Protecting interests: No assignment clauses can help protect the Principal’s interests by preventing the transfer of obligations to a third party who may not have the same level of expertise or resources as the original party.
• Avoiding conflicts: No assignment clauses can prevent conflicts that may arise from a change in the parties involved in the contract.

How to Negotiate a No Assignment Clause

If a Principal wishes to include a no assignment clause in a construction contract, they should be prepared to negotiate this with the other party. Here are some tips for negotiating a no assignment clause:

• Be clear about the reasons for the clause: The Principal should explain their reasons for including the no assignment clause and how it will benefit both parties.
• Consider exceptions: The Principal should consider including exceptions to the no assignment clause, such as allowing assignment with prior written consent or in the event of a sale of the business.
• Be reasonable: The Principal should ensure that the no assignment clause is reasonable and does not unfairly restrict the other party’s ability to conduct their business.
• Seek legal advice: Both parties should seek legal advice before finalising the contract to ensure that the no assignment clause is enforceable and does not contravene any laws or regulations.

No assignment clauses are an important consideration in construction contracts and should be negotiated carefully to protect the interests of all parties involved.

In conclusion, both deeds of assignment and novation are important legal tools that allow for the transfer of rights and obligations in a contract. However, they differ in terms of the impact on the original contract, the need for a new contract or deed, and the consent requirements of involved parties. It is important to carefully consider the specific circumstances and objectives of the parties involved before choosing the appropriate legal tool.

In the case of construction contracts, no assignment clauses play a crucial role in protecting the interests of Principals. They ensure that the Principal has control over who performs the works and avoids having to work with an unknown or untested contractor. Principals must understand the purpose of no assignment clauses and negotiate them carefully to ensure that their interests are protected.

Ultimately, seeking legal advice is recommended when deciding which legal tool to use or negotiating the terms of a contract. A lawyer can provide guidance on the best course of action and ensure that the parties involved are aware of their rights and obligations.

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In the complex world of Australian construction law, disputes over payments and services are commonplace. Understanding whether to pursue a quantum meruit claim or seek breach of contract damages is crucial for contractors, builders, and property owners. This article explores “quantum meruit vs contract damages Australia,” highlighting their key differences, legal foundations, and implications in construction law disputes.

Are you involved in a construction dispute and considering a quantum meruit claim? This comprehensive guide explains everything you need to know about quantum meruit claims in Australian law, with a focus on their application in construction disputes.

Quantum meruit , Latin for “as much as he deserved,” is a critical legal concept that frequently arises in Australian residential building disputes. For homeowners embarking on construction projects, understanding quantum meruit is crucial to protect your interests and navigate potential conflicts with builders.

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THE NOTICE OF ASSIGNMENT: A REFRESHER COURSE

Allen J. Heffner Nov 20, 2023

The Notice of Assignment is probably the single most important document for a Factor. Understanding what needs to be included in the Notice of Assignment, how to send it, and who to send it to can mean the difference between getting paid and not. Despite the fact that every Factor is (or should be) familiar with legal requirements relating to Notices of Assignment, we still find that many of our factoring clients who end up in litigation make basic mistakes relating to their Notices of Assignment. The article focuses on what information needs to be included in the Notice, who the Notice should be sent to, and how the Notice should be delivered.

What needs to be included in the Notice of Assignment?

To be effective, there is certain information that must be included in the Notice of Assignment. The Uniform Commercial Code (“UCC”) requires that the notice must:

• Notify the Account Debtor that the amount due or to become due has been assigned;
• Notify the Account Debtor that payment is to be made to the Factor;
• Reasonably identify the rights assigned; and
• Be signed by the Factor or its client.

The Notice of Assignment should also include a remittance address so the Account Debtor is informed how and in what manner the Factor should be paid.

Additionally, while not explicitly required under the current version of the UCC, Factors should include language in their Notice of Assignment that: (i) the Client has assigned all of its present and future accounts receivable to Factor; (ii) the Factor holds a first priority security interest in all of the client’s accounts receivable; and (iii) all payments owing to the client must be paid to the Factor.

Who should the Notice of Assignment be sent to?

Notices of Assignment should not be sent directly to individuals with an Account Debtor. Sending the Notice to a specific individual may lead to issues relating to the authority of that individual to receive documents on behalf of the Account Debtor. Moreover, Factors that direct Notices of Assignment directly to individuals open themselves up to arguments that the Notices of Assignment was not properly delivered. For instance, our clients that have sent Notices of Assignment to individuals have ended up in situations where the individual to whom the Notice of Assignment was addressed no longer worked with the Account Debtor or the individual was located at a different office and the Notice of Assignment was not sent to the proper location. To be safe and to avoid unnecessary issues, Factors should send the Notice of Assignment to the Account Debtor’s accounts payable department.

Additionally, some states have specialized definitions for what constitutes “notice” on behalf of a company. If there is any question as to where a Notice of Assignment should be sent, Factors should check with their attorney to determine where these should be sent.

How should the Notice of Assignment be delivered?

The crucial issue for the enforceability of a Notice of Assignment is proof of receipt by the Account Debtor, not proof of delivery. Therefore, it is good business practice to send the Notice of Assignment either certified mail or other method that provides for proof of delivery.

Many of our clients have asked about whether it is proper to deliver the Notice of Assignment via e-mail asking the Account Debtor to confirm receipt or with “read receipts” turned on. Some Factors prefer this method because it is more cost efficient.

While sending Notices of Assignment via e-mail is enforceable, we would not recommend it as a general business practice. Sending the Notice in this manner requires delivering the Notice to a specific individual, which we have discussed above can be problematic. Sometimes officers and directors of companies have assistants or other personnel manage their e-mail accounts, raising the possibility that the individual to whom the Notice was sent, never saw the e-mail, even though the e-mail was “read.”

Last, there is no requirement that the Notice be signed by the Account Debtor and returned to the Factor. Often, we see our client’s Notice include a “confirmation of receipt” line for the Account Debtor to sign and return. Sometimes, the Factor will have proof of delivery to the Account Debtor but the Notice was not signed and returned by the Account Debtor. This adds unnecessary ambiguity as to whether the Notice was actually received by the Account Debtor. Therefore, we instruct our clients not to include such requests for proof of receipt.

Who should send the Notice of Assignment?

Some of our clients that have had bad experiences with Account Debtors after delivering a Notice of Assignment have chosen to have their Client be the one to deliver the Notice of Assignment. There is no legal requirement as to whether the Factor or the Client is the correct party to deliver the Notice of Assignment. However, we recommend the Factor be the one to deliver the Notice of Assignment. This way, the Factor is in complete control of the contents of the Notice of Assignment, how it is delivered, and receives confirmation of its delivery. We have been in situations in which the Factor allowed the Client to deliver the Notice of Assignment, but the Client did not deliver the Notice of Assignment in accordance with the law, leading to avoidable litigation.

Should a Factor respond to an Account Debtors questions regarding a Notice of Assignment?

Absolutely, yes. If requested by an Account Debtor, pursuant to the UCC, a Factor must furnish reasonable proof of the assignment for the Notice of Assignment to be valid. Too often we see situations in which requests are made or questions are posed by Account Debtors that the Factor ignores, thinking that because the Account Debtor received the Notice of Assignment, nothing else needs to be done. The Factor should respond to the Account Debtor and provide reasonable proof of the assignment. These communications can also provide invaluable insight as to the relationship between the client and the Account Debtor, how and when payments will be made, and can provide the Account Debtor a sense of trust with the Factor.

A Notice of Assignment is crucial for Factors because it provides legal protection, establishes priority of interest, prevents confusion, facilitates legal recourse, and enables effective communication with Account Debtors. Without this notice, Factors may encounter difficulties in asserting their rights and collecting payments from Account Debtors, potentially jeopardizing the financial transaction.

Bruce Loren and Allen Heffner of the Loren & Kean Law Firm are based in Palm Beach Gardens and Fort Lauderdale. For over 25 years, Mr. Loren has focused his practice on construction law and factoring law.  Mr. Loren has achieved the title of “Certified in Construction Law” by the Florida Bar. The Firm represents factoring companies in a wide range of industries, including construction, regarding all aspects of litigation and dispute resolution. Mr. Loren and Mr. Heffner can be reached at [email protected] or [email protected] or 561-615-5701

Bruce E. Loren · Michael I. Kean · Allen J. Heffner · Kyle W. Ohlenschlaeger · Frank Sardinha, III

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Tips in Enforcing Assigned Debts

Articles , Restructuring + Insolvency

Sep 23, 2016

It is common for debts to be assigned by creditors for numerous reasons.  Once a debt is assigned however it does not mean the assignee can seek to enforce the debt without facing potential difficulties.

Firstly, a question might arise as to whether the assignment is valid.  Some agreements or contracts specifically exclude the ability to assign a right arising in the agreement or contract.  For an assignment of a debt to be valid, notice must be given to the debtor in accordance with section 12 of the Conveyancing Act 1919 (NSW) .

Proving notice was given can often be a problem when a large number of debts are assigned.  Often a pro forma letter is produced and issued en masse , with no copies of the letters actually sent and addressed to each debtor being maintained.

The right of a debtor to assert an offsetting claim in defence to any step taken to enforce a debt by the assignee can also cause issues.  An assignee acquires the same rights and obligations of the assignor.  Therefore if proceedings are commenced by the assignee to enforce the debt, the defendant debtor may have an offsetting claim which arises out of the arrangement between the assignor and the debtor, to which the assignee is not a party.

Section 21 of the Civil Procedure Act 2005 (NSW)  provides for an offsetting claim to be made by way of defence even if the offsetting debt has no relationship to the debt which is the subject of the assignee’s claim.  If no debt is found to be owing by the debtor to the assignor then the assignee has essentially been assigned nothing of value.  Similar offsetting provisions apply to applications to set aside a creditor’s statutory demand for payment of debt.

When considering taking an assignment of debt, one should carefully consider the value of the assigned debt that might be recovered and ensure the notice formalities are met.

For more information please contact us , you may also be interested in our recent piece on assignment of debts in the context of bankruptcy .

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Bankruptcy & Insolvency News SLF Lawyers News Is Your Notice Assignment of Debt Valid? May 25, 2020

A creditor (assignor) can transfer their rights to receive and seek payment of a debt to a third party (assignee). Once the transfer of their rights has occurred, the assignor can then seek payment of that debt from the debtor. Once assigned, the assignee has the legal right to such debt and has the power to give a good discharge of it  without the concurrence of the assignor. [1]

There are two factors that an assignee must consider before attempting to recover a debt from a debtor:

SERVICE OF THE NOTICE

The assignee must issue a notice of assignment of debt (“ Notice ”) to the debtor at the debtors last known residential address. This is where the confusion and issues around the service of the Notice can occur by the debtor. Generally, a bank will assign the debt to a collection company after years of attempting collection/locating debtor. It is at this stage that the debtor may have moved residential addresses and may not receive the Notice. The assignee is required to comply with section 347 of the  Property Law Act 1974  (Qld), whereby service of any notices must be made to the person’s last known place of abode.

STATUTE OF LIMITATIONS

An assignee must ensure that they are within the statue of limitations to legally commence recovery of the debt. The purpose of a statute of limitations is to limit the delay for creditors to take action against a debtor for outstanding monies. The limitation period for a contract debt is six (6) years, calculated from the point of breach. Where an assignee has been assigned a debt, the point of breach will commence from the date the debt was assigned to the assignee. However, in some circumstances, where a debtor acknowledges the debt or makes a payment in respect of the debt, the point of breach starts from the date of acknowledgement or the last payment made by the debtor.

SLF Lawyers specialises in legal recoveries and various enforcement options and can assist in providing advice with respect to ensuring the Notice has been issued correctly.

If you have any questions, please contact Partner – Mark Smith of SLF Lawyers Brisbane on (07) 3839 8011.

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The Enforcement of Assigned Debts

In the realm of financial recoveries, the assignment of credit contracts in default is a well-established practice. Banks and financial institutions frequently assign defaulting credit card and personal loan accounts to debt collectors in an effort to streamline their cost-effective recovery processes. At RCR Lawyers, we recognize the importance of understanding the legal intricacies surrounding the assignment of debts, and we are here to provide you with valuable insights and guidance.

Assignment of Debts: The Legal Framework

Under the Property Law Act 1974 (Qld), specifically in Section 199, provisions are made for the assignment of debt at law. This allows for the transfer of debt ownership from the original credit provider (the assignor) to the new owner (the assignee). However, it’s crucial to note that this assignment must be absolute, and written notice must be given to the debtor. Importantly, the debtor’s consent is not a prerequisite for this assignment.

Once a debt is assigned, all rights and responsibilities vested in the original credit provider are now transferred to the new owner. This transfer grants the assignee the authority to collect on the debt as if they were the initial credit provider. This includes the ability to charge interest as per the original contract terms and to initiate legal proceedings to recover the debt.

The National Credit Code: A Comprehensive Framework

The National Credit Code, a crucial component of the National Consumer Credit Protection Act 2009 (Cth), extensively addresses the assignment of debt. It outlines the responsibilities of all credit lenders, providing a comprehensive framework for debt assignment and recovery.

Debtor Confusion and Legal Challenges

For debtors, the collection of assigned debts can often lead to confusion. While written notice of the assignment is a requirement, this notice extends only to the last known address (or last provided address) of the debtor. Many debtors are not familiar with the concept of debt assignment and often have not scrutinized the details of their credit contracts. As a result, an assignee who initiates legal proceedings to recover an outstanding balance may encounter significant obstacles.

In legal matters related to assigned debts, the case of Clark v Gallop Reserve Pty Ltd [2016] QCA 146 serves as an illustrative example. In this case, the validity of the Westpac Bank Corporation’s Deed of Assignment was challenged, as it did not explicitly include the judgment debt in the description of the outstanding debt owed to Westpac.

Philip McMurdo JA, in his judgment, emphasized that the wording “Westpac assigns to the Transferee all of Westpac’s full, absolute and entire legal and beneficial interest, right and title in and to the Westpac Debt, the Westpac Finance Documents, and the Westpac Guarantees” was sufficient to encompass the judgment obtained by Westpac before assignment. This exemplifies the court’s acknowledgment of the validity of the debt assignment and the assignee’s right to enforce the judgment debt.

Enforcement Options for Assignees

Once a debt has been validly assigned (following the absolute written assignment and proper notice to the debtor’s last known residence), and there are no offsetting claims available to the debtor, the assignee is entitled to pursue legal steps to recover the outstanding debts. These enforcement options may include:

• Commencing legal proceedings
• Obtaining judgments
• Enforcing judgments through methods such as statutory demands, bankruptcy notices, creditors’ petitions, warrants for property seizure and sale, garnishee orders, and more.

The RCR Recovery Team possesses extensive knowledge of various enforcement methods applicable in all Australian jurisdictions, particularly in the recovery of assigned debts. We are also well-equipped to provide guidance on the assignment of debts and the obligations that arise once such assignments occur.

If you have any inquiries or require further information on this topic, please don’t hesitate to contact RCR Recoveries at 07 3009 8444. Our legal team is ready to assist you with any questions or concerns you may have regarding the assignment and recovery of debts, ensuring that you have the necessary support to navigate these complexities with confidence.

At RCR Lawyers, we are dedicated to empowering you with the knowledge and guidance you need to effectively manage and recover assigned debts while upholding the highest legal standards.

If you have any queries in relation to the above, please contact RCR Recoveries on (07) 3009 8444 . Alternatively, you can contact us online or email us at [email protected] . 

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Election Notice 1: Receipt of writ 

2024 epping, hornsby and pittwater state by-elections , saturday, 19 october 2024 .

On Friday 27 September 2024, I received from the Speaker of the Legislative Assembly, the Hon Greg Piper MP, a writ for the election of one Member of the Legislative Assembly for each of the electoral districts of Epping, Hornsby, and Pittwater. 

The writs specify the following dates for the by-elections:  

Date of the writs: Friday, 27 September 2024 

Day nominations open: Friday, 27 September 2024 

Nomination day (close of nominations at 12 noon): Thursday, 3 October 2024 

Early voting opens: Saturday, 12 October 2024  

Election day: Saturday, 19 October 2024 

Return of the writ: Friday, 8 November 2024 

Dr Matthew Phillips   Acting Electoral Commissioner for New South Wales  

Last updated 27 September 2024 at 10:16 AM

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Complete a Notice of Sale

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This information aims to help you complete an electronic Notice of Sale.

Property details

The land title reference affected by the change of ownership must be specified.

Property street address

If there is a transfer of more than one property at different addresses, supply the land title reference and address for one of the properties only

The name assigned to a government administrative district, such as a Parish, County or Local Government Area.

Area of property

Specify the area of the property in metric units. If more than one land title is included in the transaction, the total area of all the land involved must be specified.

If the property transferred is a strata unit, specify the area of the strata lot.

Measurement

Select one of the following:

• m2 – square metres
• ha – hectare

Nature of property

Select one of the following to specify the use of the property being dealt with:

• Carspace - land used specifically for providing vehicle parking.
• Commercial – land used specifically for commercial purposes.
• Factory - land used specifically for a factory.
• Marine berth - land used specifically for one or more marine berths.
• Office - land used specifically for one or more offices.
• Residence - land used specifically for a private residence.
• Shop - land used specifically for a shop.
• Vacant land - land not occupied or used for any specific purpose.
• Warehouse - land used specifically for a warehouse.

Service of Notice details

Party for notice.

Select which party to whom notices are to be addressed. This person or organisation does not need to be the owner of the property as full names of all new registered proprietors are provided to authorities from information recorded on the transfer instrument lodged with this notice of sale.

• Owner’s agent – the agent that represents the proprietor of land.
• Owner – the proprietor of land.

Is Service of Notice Address the same as the Property Street Address?

• Yes – select if the address of the property is the same as the address for service of notices.
• No – select if the address of the property is not the same as the address for service of notices.

Transaction details

Share of the property transferred.

Only enter the share of the property transferred if less than the whole property is being transferred.

How was the property transferred?

Select the occupancy being provided to the party receiving i.e. the transfer arrangement:

• To the tenant – the land is transferred to the existing tenant.
• With vacant possession – the land is transferred with vacant possession.
• With existing tenant – the land is transferred with the existing tenant.

Consideration type

This will default to the consideration type selected in the Transfer instrument.

If consideration type is monetary , the following fields must be completed:

Purchase price

Enter the purchase price of the property, inclusive of GST.

Enter the GST amount for the property purchased. If there is no GST payable, enter 0.

Contract of sale date

Enter the date in which the contract of sale was completed and signed by all relevant parties.

Settlement date

Enter the settlement date that has been scheduled.

If consideration type is non-monetary, the following fields must be completed:

Acquisition type

Select one of the following methods of non-monetary acquisition:

• Court order – a direction issued by a court.
• Deed of assignment – a deed by which land or an interest in land is dispersed to the specified entitles.
• Deed of partition - a deed by which land held in a joint tenancy or tenancy in common is separated into different portions and dispersed among the owners.
• Intergenerational assignment - dispersion of land or an interest in land to family members.
• Other acquisition type – means of acquisition other than other listed.
• Will or intestacy - dispersion of land or an interest in land as a result of the death of the sole owner or an owner with a tenancy in common in that land or interest in land.

Acquisition date

Enter the date of acquisition, as follows:

• Court order – date of order if a vesting order was made, otherwise date of transfer executed pursuant to the order
• Other acquisition type – date of execution of dealing or instrument if no other date is applicable
• Will or intestacy – date of grant of probate or letters of administration

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Making renting fairer in NSW

Published: 23 September 2024

Released by: The Premier, Minister for Better Regulation and Fair Trading, Minister for Homelessness, Minister for Housing

The Minns Labor Government will ensure tenants have a free and convenient way to pay their rent, as part of its comprehensive package to build a fairer rental market.

This comes as the Government finalises a suite of measures to modernise the system, to be introduced into the Parliament in October.

The Government made an election commitment to improve rental laws and strike the right balance between the interests of owners and renters.

More people are renting than ever before, with around one third of the NSW population living in rentals.

The current rental market in NSW is the toughest that renters have seen for decades, with historically low vacancy rates, and median rent prices for houses increasing by around 7 per cent over the last 12 months.

The Government has heard too many stories of renters being given limited options to pay their rent, without incurring additional fees and charges.

The Government will require property owners and agents to offer free ways to pay, such as bank transfer and the Commonwealth Government’s Centrepay.

It is not fair that renters are being charged additional fees simply to pay their rent, especially amid current cost-of-living pressures.

Following targeted consultation with key stakeholders, which concluded last Friday, the Government can also confirm that reforms making it easier to have pets in rentals will be incorporated into the upcoming bill.

According to the RSPCA, one in five animals they receive in NSW has been surrendered due concerns about rental applications.

Domestic violence organisations have also reported that a major barrier for victim-survivors getting out of dangerous homes is their concern about securing housing with their pet.

The Have Your Say public consultation process reaffirmed that renters find it too hard to have pets in their home with more than 16,000 submissions and survey responses received from the general public.

While renters will still need to apply to have pet in their home, the Government’s changes will make it much easier, and bring NSW into line with most other states where similar reforms have been undertaken.

While owners will no longer be able to refuse pets without any reason, they will still be able to decline in certain specific situations. These will include where having the pet would break another law (e.g. local government regulations), or if the owner lives in the property and does not want to live with the animal.

The bill will also include measures previously announced:

• Ending no grounds evictions: Establishing a set of reasonable grounds to end a lease, giving greater certainty to renters and owners. Property owners will now need a reason to end a tenancy for both periodic and fixed term leases.
• Crackdown on fees: Renters will no longer be being charged for background checks when they’re applying for a rental property.

This detailed work is about ensuring the Government gets the balance right in the rental market.

These important changes follow key initiatives already introduced. This includes the free, online Rent Check tool, and an $8.4 million investment to establish a Rental Taskforce within NSW Fair Trading, with investigators and inspectors to act on serious breaches of rental laws.

Premier Chris Minns said:

“We were elected with a mandate to modernise the rental market, and that’s what this bill will do.

“You don’t pay additional fees every time the mortgage comes out, and you shouldn’t have to pay to pay the rent.

“We are building a fairer rental market for both tenants and owners.

“We believe this bill make things a bit less stressful for renters, while getting the balance right.”

Minister for Better Regulation and Fair Trading Anoulack Chanthivong said:

“We know that renters have been calling out for change so we’ve developed a broad package that will make renting fairer and increase clarity for property owners.

“There are 2.2 million renters across the state and we’re getting on with the job to create a more modern rental market that works for property owners and renters alike.”

Minister for Housing and Homelessness Rose Jackson said:

“Reforming the rental system is a vital step to rebuilding our housing system in NSW.

"Providing more options and greater certainty in tenancies will help reduce the stress so many are facing in today’s challenging rental market.

“We want to ensure sure that the growing number of renters in our state have the stability and transparency they deserve.”

NSW Rental Commissioner Trina Jones said:

“This is another important step towards a fair, quality, affordable rental experience in NSW.”

“We are working closely with renters, landlords, the RSPCA, animal welfare organisations, agents and advocates to ensure these proposed reforms can be implemented successfully.”

Related ministerial media releases

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• Lodging With NSW LRS

Dealings and Documents

In this section, introduction, documents available for manual lodgment, lodging dealings affecting land title references.

Out-of-scope transactions

Lodging documents not affecting land title references

Eligibility to lodge electronically, subscriber compliance, related announcements.

Electronic conveyancing (eConveyancing) is the digital completion of conveyancing transactions including transferring property ownership from seller to buyer.

The Registrar General has declared under the NSW Conveyancing Rules that 100% Real Property Act dealings (excluding Determination of Title Boundary) are mandated to be lodged electronically.

This means, on and from 11 October 2021, NSW LRS will not be able to accept Real Property Act dealings presented at the NSW LRS Lodgment Office or via post. All land dealings to be lodged with NSW LRS can only be done electronically by a subscriber (e.g., a lawyer, licensed conveyancer, or financial institutions) through an Electronic Lodgment Network Operator (ELNO).

Transactions which are out-of-scope for lodgment as structured electronic dealings are still mandated and will be dealt with in a slightly different process, which is explained in the ‘Out-of-scope transactions’ section below.

The following dealings are available for lodgment in paper via our manual lodgment channels. These documents can be lodged by attending the NSW LRS Lodgment Office or via registered post to GPO box 15, Sydney NSW 2001.

• Water Access Licence dealings (manual lodgment only)
• Determination of Title Boundary (manual lodgment only)
• Powers of Attorney
• Old System Deeds
• Resumption of non-RPA Land/Primary Applications

Information on the lodgment requirements for these dealings can be accessed through the Registrar General’s Guidelines .

Since Monday 12 July 2021, the NSW LRS Lodgment Office has been operating on an appointment only basis. Please visit the NSW LRS Covid-19 Updates for more information on our manual lodgment procedures. 

Customers can find a list below of the documents available for lodgment as structured electronic dealings (without the requirement to attach a paper dealing form) through an ELNO. Please visit the Registrar General’s Guidelines for lodgment requirements specific to each document.

Information on transactions involving dual entitlement/multiple ownership situations can be found here .

For the 1% transactions which are out-of-scope for lodgment as structured electronic dealings, please see below for lodgment options.

Out-of-Scope Transactions

About 1% of transactions are currently out-of-scope for lodgment as structured electronic dealings. ELNO subscribers can lodge ‘out-of-scope transactions’ electronically by using an electronic document known as ‘Dealing with Exception’. The subscriber will prepare the out-of-scope dealing in paper and will lodge it electronically as a pdf attachment to the Dealing with Exception document.

Please see the Lodgment Rules Exceptions List for a full list of scenarios and documents available for lodgement as a Dealing with Exception.

For information on how to lodge a Dealing with Exception, please refer to the Registrar General’s Guidelines .

Key information on lodging a Dealing with Exception 

• A completed Lodgment Rules Exceptions form must be lodged with each ‘Dealing with Exception’ lodgment case.
• When lodging a Dealing with Exception, the Document Type selected, and the Land Title provided via the ELNO workspace will determine the type of transaction and folios affected by the dealing in the Register. Therefore, it is important for customers to select the correct document type to match the dealing attached and to insert all affected land title references in the ELNO workspace as stated on the attached paper dealing form. NSW LRS include the title reference and document name stated on the cover sheet as part of the examination of the case.
• Where the dealing affects a servient and dominant tenement, all relevant titles must be entered in the workspace. Where the dealing affects a LF title, only enter the LF title in the workspace. Reference should be made to all head titles and LF titles on the attached paper dealing form.
• Once received by NSW LRS, your document will be examined based on the attached paper dealing form, Lodgment Rules Exceptions form and any attached supporting documentation. Please visit the Registrar General’s Guidelines for information on the lodgment requirements of the out-of-scope dealings.

Lodging multiple out-of-scope dealings in one lodgment case 

If you are seeking to lodge multiple out-of-scope documents in the same ELNO workspace, then multiple Dealing with Exception document types must be selected in the workspace. The corresponding paper dealing form and associated documents must be uploaded and attached separately against each relevant Dealing with Exception.

For example, if two paper Leases (07L forms) are to be lodged as Dealings with Exception in the same workspace, then the document type (Lease (07L)) must be selected twice in the ELNO workspace and each paper copy must be uploaded against the corresponding document type. If more than one document is included in a single upload, a requisition will be raised by NSW LRS requesting for separate lodgment(s) to be made for the additional document(s) included as an attachment.

Miscellaneous Dealing

This document type is selected where a Real Property Act dealing cannot be lodged as a structured electronic dealing or Dealing with Exception.

Please see the Lodgment Rules Exceptions List to verify if you are eligible for lodgment under this option.

• The land title NO/REF/99999 is entered into the workspace
• Miscellaneous Document is selected
• The completed paper dealing form is attached in PDF. Please note, only one dealing form can be lodged per ELNO workspace.

Documents which don’t have a Real Property Act Land Title Reference can be lodged through the ELNO workspace using a prescribed Title Reference, No/REF/99999 and submitted as a document in PDF format.

Only one document can be lodged through the ELNO workspace. If you are seeking to lodge multiple documents, then multiple ELNO workspaces must be created, and the corresponding paper form must be uploaded against each workspace. 

Powers of Attorney and Old System Deeds

For a list of documents lodged as part of this document type, please click here .

NSW LRS will not accept Powers of Attorney which have been signed electronically

• Old System Deed or Power of Attorney is selected as appropriate
• A completed Deeds Index Particulars form together with a completed paper Deed or Power of Attorney and any other required documents e.g. Manual Notice of Sale form is attached to the ELNO workspace

For preparation and delivery information, please see the Information Sheet on Electronic Powers of Attorney and Old System Deeds .

• The land title No/REF/999 is entered into the ELNO workspace
• Memorandum is selected
• A completed paper Memorandum form is attached in PDF

Resumption of Non-RPA/Primary Application 

• Resumption of Non-RPA/Primary Application is selected
• The completed paper forms together with any further evidence and manual Notice of Sale form is attached as pdf to the ELNO workspace.

To conduct an eConveyancing transaction, customers must use the service of a lawyer or conveyancer who is registered with an Electronic Lodgment Network Operator (ELNO).

The following institutions can help you to find a lawyer or conveyancer in NSW:

• The Law Society of NSW : Search accredited specialists in the field of property law.
• Australian Institute of Conveyancers (NSW Division) : Find a conveyancer and learn the steps involved in buying a house or unit.

A list of authorised ELNOs in NSW can be accessed here .

Section 33 of the Electronic Conveyancing National Law provides the Registrar in each Jurisdiction with the power to undertake a Compliance Examination for the purpose of ascertaining whether the Model Participation Rules have been complied with or investigating any suspected or alleged case of misconduct by a Subscriber (including a former Subscriber). Under section 34 of the Electronic Conveyancing National Law, a Subscriber is obliged to cooperate fully in a Compliance Examination and comply with any reasonable requirement by the Person conducting the Compliance Examination.

The Registrar General of NSW has delegated NSW LRS with the authority to conduct Compliance Examinations for Subscribers transacting in NSW.

How NSW LRS undertake Compliance Examinations

When a Subscriber is selected to participate in a Compliance Examination, they will receive a notice from NSW LRS including a Subscriber Compliance Examination Checklist. The notice will:

• Identify the Registry Instruments for which the Compliance Examination will be conducted.
• Request that the Subscriber provide Documents and/or information that demonstrate the Subscriber’s compliance with the Participation Rules.
• State a time, no less than 10 Business Days after the giving of the notice, within which the Documents and/or information must be provided to the Registrar.
• Outline how the Documents and/or information must be provided to the Registrar.

Please refer to the Subscriber Compliance Portal Guide for more information on how to upload the required documents.

Subscribers should be aware that failing, without reasonable excuse, to comply with the notice is a Suspension Event that may result in the commencement of the Suspension and Termination Procedure in Schedule 7 of the Model Participation Rules .

Why Compliance Examination is necessary

A key objective of the Subscriber Compliance Program is to ensure the program assists Subscribers in meeting their obligations and responsibilities under the Model Participation Rules and to build trust and confidence in the Electronic Lodgment Network.

More information about the eConveyancing Subscriber Compliance regime can be found through the  Office of the Registrar General‘s website .

Lodgment Rules Exceptions Form

Lodgment Rules Exceptions List

Registrar General’s Guidelines - Electronic Dealings

Registrar General’s Guidelines – Dealing with Exception

Registrar General’s Guidelines – Paper Dealings

FAQ – Electronic Leases

FAQ - All Electronic Lodgments and Cancellation of Certificates of Title

Information Sheet – Electronic Powers of Attorney and Old System Deeds

Office of the Registrar General Website

Subscriber Compliance Portal Guide

Model Participation Rules - ARNECC

Covid-19 Guidance - ARNECC

PEXA Help Centre

A regular update of our Frequently Asked Question on lodging electronically with NSW LRS and Cancellation of Certificates of Title

New requisition process for dealings starts today

ORG announces cancellation of Certificates of Title and 100% eConveyancing - commencing 11 October 2021

One hundred percent of documents to be available as electronic dealings in NSW

Electronic Leases: NSW LRS updates mean easier lodgment

Lapsing Notices go digital

To stay up to date on the latest news you can subscribe to alerts by emailing [email protected].

Service Status Update

Until December 2018, there will be planned outages for some NSW LRS systems while we undertake essential works. Where possible these works have been scheduled over weekends to minimise disruption to our customers.

Upcoming Outages: Will be advised once confirmed.

To check on the status of our online services or to subscribe to our outage notifications, please visit our Service Status page .