VES-01 Vesting Orders

Full review of guide undertaken 03/09/2025

1 Overview

The applications covered in this topic are at the discretion of the Commissioner of Titles based on the merits of the evidence provided.

These transaction types are not considered simple. Consideration and processing times can vary considerably.

Applications subject to sections 182 and 183 are assessed for duty once the Application is granted by the Commissioner of Titles. Process time at Revenue WA vary.

The Applications covered in this topic have been released as residual documents and may be lodged electronically. Some limitations apply, please refer to the Residual Document Table in ELE-04 Residual Documents . Applications will continue to be accepted in paper.

1.1 Consent

If the land to be vested is encumbered by a mortgage, the written consent of the mortgagee must accompany the Application.

1.2 Caveats

Caveats are a warning on a title. Caveats are not defined under the Transfer of Land Act 1893 (‘TLA’) or the Land Administration Act 1997 nor are they considered interests, encumbrances and notifications.

A caveat itself is not an interest capable of being vested. The underlying interest in the land by which the caveat seeks to protect may be capable of being vested, where it has been registered as a legal interest such as a mortgage, charge, lease etc.

Applications seeking to vest the underlying interesting in a caveat cannot be accepted. If an Application under the below sections is lodged it will be requisitioned and requested to be withdrawn.

1.3 Crown Land

Where an application under this topic is being considered against Crown Land, please refer to ‘Interests’ as defined under section 3 of the Land Administration Act 1997 (“LAA”) to establish if the interest is capable of being dealt with by these applications or if other transaction types are applicable.

Also see RES-01 Crown Reserves.

2 Vesting Orders (Section 182 of the TLA)

2.1 Overview

Where land or legal interest is held in trust by the registered proprietor, any person entitled to be registered as the new/replacement trustee may make an application describing the land being dealt with or, if applicable, the mortgage charge or lease, requesting the issue of an order vesting it in the applicant. If the desired result can be achieved by transfer a vesting order will not be granted. The facts relied upon to establish the applicant’s claim must be set out by statutory declaration and such documentary evidence as is necessary to support the claim should be made annexures to the declaration.

This type of application is particularly useful in the following circumstances:

• Where there is a break in the chain of executorship as the administrator cannot apply for transmission in the ordinary way. Refer to ‘who may’ and ‘who may not’ apply for Transmission in the topic DEC-03 Transmission Applications
• The personal representative of the last surviving trustee where both Trustees are now deceased. The term personal representative in this case includes executors and administrators.
• A remaining trustee where the co-joint trustee has lost capacity and needs to be removed.
• Where a corporate trustee deregisters prior to dealing with all the trust land/assets.

Where a corporate trustee deregisters prior to dealing with all the trust land/assets. This Application may provide a remedy to having the trust land transferred to the current Trustee. Where a now deregistered company held land as a corporate trustee, Australian Securities & Investments Commission (ASIC) may not exercise their power to sign a Transfer under section 601AF of the Corporations Act 2001. The trustee will be directed to this Application type. 

The personal representative of the last surviving trustee has a power of appointment of new trustees under s.7 of the Trustees Act 1962. The power of appointment is required to be exercised in writing and the appointor may appoint the appointor, or another person to be the trustee of the land, mortgage, lease or charge being dealt with.

The new trustee so appointed may then apply for the issue of a vesting order. The form to use is the Vesting Application (Trust Estate) s182 eForm or General Application Form A5 (PDF) located in the land titling and search forms describing the land affected in every case, and, if a mortgage, lease or charge is involved, the number of that instrument and requesting the granting of a Vesting Order under s.182 of the TLA.

2.2 Evidence Required

In support of such an application the following minimum evidence is required to be addressed in the statutory declaration by the applicant/New Trustee:

• a statutory declaration by the applicant as the new trustee will need to:
• set out the facts of when and how the trust was created;
• when the land was acquired by the trust with reference to the contract of sale or other acquisition document;
• Set out the chronical and chain of Deeds to the Trust and any intervening events, ie death of trustee/s;
• If applicable, there should be a statement, to the best of the declarant’s knowledge, that the person through whom the declarant claims (the most recently deceased personal representative) had completed the duties as executor or administrator and had continued to hold the land or interest being dealt with as mere trustee.
• Annex all documents to support the application to the statutory declaration such as those covered below:
• contract of sale or other document evidencing the acquiring of the land as an asset of the trust
• an office copy of any Grant of Probate or Letters of Administration forming evidence of the appointers power to appoint a new trustee, and
• the Deed of Appointment of New Trustee referred to above, together with any and all other applicable trust deeds
• evidence to verify when the land became a trust asset and any evidence to verify that the land has remained a trust asset at all relevant times
• Any relevant and current financial records that show the land as trust land.

Where possible, documentary evidence should be Landgate sighted or the equivalent.

Where a Declaration of Trust was previously deposited, and the title is noted with a Registrar’s Caveat as to same, this may provide some assistance in establishing a timeline but will not be used as a guarantee that the land has remained trust land. Sole reliance of the presence of the Registrar’s caveat will not be considered sufficient proof or evidence.

2.3 Preparation, Stamping and Processing of the Order

If the Application is granted, the Commissioner will instruct Landgate staff to prepare a vesting order.

Vesting Orders are subject to assessment of duty by RevenueWA.  A notice or email will be sent to  the lodging party advising  that the order has been signed by the Commissioner and it can be obtained from Landgate for assessment by RevenueWA in one of the following ways: collected from Landgate by the applicant, or the solicitor for the applicant, or posted orrequest a scanned copy be emailed .

Once the vesting order has been assessed and endorsed manually or digitally by the production of a duty certificate issued by RevenueWA, the order or duty certificate is returned to Landgate staff, who arrange for final processing.

2.4 Effect of Registration

The procedure is then completed by entering the name of the applicant (new trustee) on the relevant certificate of title. As like any trust held land in Western Australia, the capacity or trust is not entered on the title. Please refer to the information in POA-05 Declarations of Trust (Section 55 of the TLA) for more information.

The Trustee on title can then proceed to deal on the land, ie sell or distribute to beneficiaries by way of Transfer of Land.

Where the land is held in trust or in the names of the personal representatives for the interests of persons entitled under the will or intestacy, a Registrar’s Caveat will likely be lodged.

3 Vesting Orders (Section 183 of the TLA)

3.1 Overview

Where a contract of sale cannot be completed in the usual manner, by way of Transfer of Land, this application type may provide an avenue to complete the sale/transfer process.

Where the Personal Representative of the estate of the transferor/seller/vendor are capable and prepared to complete the transfer of land process, the usual Transmission Application and Transfer of Land should be completed.

Where a person has purchased land from the registered proprietor, completed payment, and has entered into possession with the consent of the vendor and no transfer has been executed because the vendor is dead or is residing out of the State or cannot be found, an application to the Commissioner of Titles for a Vesting Order may be made by the purchaser.

An application on the   Vesting Application (Completed Purchase) s183 eForm or General Application Form A5 (PDF) located in the land titling and search forms describing the land and requesting the issue of a vesting order under the section should be made. 

Proof of each of the necessary elements set out in the section must be supplied. In particular proof of payment of the purchase price and interest (if any) in the contract of sale or other document of purchase is required. This should take the form of receipts, cheque butts or bank statements and must cover the entire purchase price.

This Application type may also be used where a completed Transfer of Land cannot be registered in the usual course. Such as a substantive defect that cannot be remedied due to the death of the seller.  The death of a person/party to a Transfer may not automatically make the transfer invalid or unregistered. Based on a case-by-case situation a fully completed and signed Transfer of Land may still be capable of being lodged and registered, so long as the usual requirements to form are present and that no substantial or critical issue that arises that would otherwise require the deceased person to correct.

3.2 Evidence Required

A statutory declaration by the applicant stating the facts with the above proof (contact of sale, complete or incomplete Transfer of Land) as annexures is required. Where possible, the annexures should be Landgate sighted or the equivalent.

If the Application is granted, the Commissioner will instruct Landgate staff to prepare a vesting order and signs it when prepared.

A notice or email will be sent advising the lodging party that the order may then be collected from Landgate by the applicant, or the solicitor for the applicant, or alternatively posted or a scanned copy can be requested, as RevenueWA may accepted a scanned copy.

Once assessed and endorsed manually or digitally by the production of a duty certificate issued by RevenueWA, the order or duty certificate is returned to Landgate staff, who arrange for final processing.

The procedure is then completed by having the name of the applicant endorsed on the first schedule of the relevant certificate of title.

4 Vesting/Disposition Orders (Section 242 of the TLA)

4.1 Overview

If a registered proprietor is unable or refuses to make the requisite transfer or other disposition under the Transfer of Land Act 1893 (TLA) or cannot be found or if for any other reason a transfer or other disposition by him/her under the TLA cannot be obtained, then by request under an application, the Registrar of Titles upon the direction of the Commissioner of Titles may give effect to a vesting/disposition application pursuant to section 242 of the TLA.

The vesting may be by the operation of any statute, statutory power or by virtue of any vesting order issued by any court, tribunal or an order appointing a person to convey an interest in land under the TLA.

An Application under section 242 can be used to give effect to, but not limited to, the following:

• Vest the interest of one or more proprietors into another person pursuant to a Court Order;
• Vest the assets of a deregistered company into a new company, as referred to in NAM-01 Name Amendment section 13.2 and where s.182 of the TLA doesn’t apply;
• Where entities such as Associations, Companies, Corporations and Local Governments are abolished/dissolved by legislation or Government Gazette and the assets of abolished entity vest to a specified new entity;
• Registering a successor in law pursuant to the Financial Sector (Business Transfer and Group Restructure) Act 1999 (CTH)
• Vesting an equitable interest under the Property Law Act 1969 into a legal interest under the TLA

Applications under section 242 of the TLA can be made on a General Application eForm or Vesting Application – Court Order (s242) eForm, depending on reason for application and supporting evidence.

An example of the Reason for Application could be:

“The Applicant hereby applies to the Commissioner of Titles to give effect (pursuant to s.242 of the Transfer of Land Act 1893) to the Order made in the (Supreme Court/Family Court, etc) of Western Australia on the ……...day of ………… 20…… in matter No. … of 20… on the grounds that (Here state nature of grounds).”

Or

“The Applicant hereby applies to the Commissioner of Titles to give effect (pursuant to s.242 of the Transfer of Land Act 1893) to section XX of ABC Act  to vest the assets of A into B on the grounds that (Here state nature of grounds).”

Registration fees are payable on these Application types.

4.2 Evidence Required

A Statutory Declaration establishing the existence of the grounds referred to in the Application must be filed with the application.

Evidence that supports the Application should be annexed to the statutory declaration. Evidence that supports the chain and change may consist of but are not limited to:

• Supreme Court Order, Federal Court Order, Family Court Order etc
• Deregistration Certificates or letter/Extracts of deregistration issued by the relevant body,
• Registration Certificate issued by ASIC or other relevant body,
• Probate
• Death Certificate
• Unregistered Transfer

Applications of this type are not yet subject to Verification of Identity (VOI). A VOI Statement may be provided but will not be insisted upon.

4.3 Vesting by Court Order

An Order by a court may give effect to a severing of tenancy or vesting of the interest of one co-owner to the other co-proprietor or another person/entity in whole or part.

Where no further explanation is required, the Application only need to make reference to the relevant section of TLA and the Order in the reason for application. A copy of the final Order must be lodged with the Application.

Any uncertainty or explanation of the Orders can be addressed in a supporting statutory declaration, if required. An example may be where there are variations of names of parties in the Court Order to the names shown on the certificate of title, additional evidence may also be required.

4.4 Transfer of Assets pursuant to the Financial Sector (Business Transfer and Group Restructure) Act 1999 (Mortgagee)

For bank integration matters, in all instances where a successor in law lodges a power of sale transfer and the former mortgagee’s name is shown on the title, the transfer is required to be preceded by an application by the successor in law asking that the mortgage vest to itself pursuant to Section 242 of the Transfer of Land Act 1893.

The vesting application should be accompanied by a Certificate of Transfer pursuant to the Financial Sector (Business Transfer and Group Restructure) Act 1999 issued by the Australian Prudential Regulation Authority (APRA). A statutory declaration is not usually required to support an application of this type, unless needed for clarification purposes.

A vesting application is not required where the debt has been paid and the Bank/Mortgagee intends to lodge a discharge of mortgage. The Bank/Mortgagee need only recite the change of name by transfer of assets, see section 4 of NAM-01 Name Amendment.

4.5 Incorporated Association now a Company under Corporations Act

The registration or incorporation under the Corporations Act 2001 (Cth)  of an incorporated association under the Associations Incorporations Act 2015 automatically cancels the incorporation of the association under section 99(1) of that Act. This may also include earlier repealed Acts, for more details see TFR-04 Transfer: Distribution in Species and Deregistered Company .

As the Association is cancelled and cannot give effect to a transfer of land, the new Proprietary/Limited company will need to apply pursuant to s242 of the TLA to have the land vested in itself under it’s newname and Australian Company Number (ACN). A Change of Name application cannot be used in this scenario.

This is similar where an Incorporated Association is transferred by statue under legislation.

4.5.1 Evidence

The application is to be supported by a detailed statutory declaration setting out the facts, the relevant section of law under the Corporations Act 2001 and the Associations Incorporations Act 2015 or other legislation. Evidence of cancellation and registration should be provided and any other evidence to support the change.

4.6 By legislative change or Gazette

There are number of entities created by law and legislation, such as Federal, State and Local Governments, Aboriginal and Torres Strait Islander Organizations and Churches/Religious groups etc. Where a proprietor changes by legislative or gazette, an application under s242 may be the appropriate mechanism to change the proprietor stated in the first schedule.

Where an Aboriginal Incorporated Association changes to a corporation under Aboriginal and Torres Strait Islander Corporation under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 the authorised person/s should make this application.

The application should be supported with a statutory declaration which sets out the facts and the change. The relevant section or gazettal pages should be included as annexures.

4.6.1 Evidence

The statutory declaration should provide a comprehensive chain of events and annex all of the relevant certificate of names changes, reference to the relevant legislation or Gazettes and any other relevant documentation.

5 Also see

• NAM-01 Name Amendment
• REG-05 Service of Court Orders upon the Registrar
• DOC-04 Statutory Declarations and Supporting Evidence
• POA-05 Declarations of Trust (Section 55 of the TLA)
• ELE-04 Residual Documents