Writ Of Seizure and Sale: A Law Firm’s Guide

Writ Of Seizure and Sale: A Law Firm’s Guide

Upon receiving a favourable court judgment, the Judgment Creditor can take enforcement action against the Judgement Debtor if he has not complied with the court judgment.

Generally in civil cases, when the Judgement Debtor fails to comply with the court judgement, a Writ of Seizure and Sale (WSS) is one of the actions that could be taken against them.

What Is a Writ of Seizure and Sale (WSS)?

Under a WSS, the Judgment Creditor can apply to the court for the seizure of property belonging to the Judgement Debtor to be used to repay the judgement debt.

The court will then authorise Bailiffs to seize the relevant property or assets belonging to the Judgment Debtor to satisfy the judgment debt. The Bailiffs will access the Judgment Debtor’s premises to seize his property, which may later be sold through a public auction.

This can be a viable option if the Judgment Creditor is reasonably certain that the Judgment Debtor has sufficient physical property of value that may be sold to cover the enforcement costs and repay the judgement debt.

What Can and Cannot Be Seized Under the WSS?

Most types of movable and immovable property can be seized, with the following exceptions:

• Clothing and bedding of the Judgment Debtor and his family, where the value of such items does not exceed $1,000;
• Tools of trade of the Judgement Debtor which enables him to earn a living, where the value of such items does not exceed $1000;
• Wages or salary of the Judgment Debtor;
• Any government-granted pension, gratuity or allowance granted to the Judgement Debtor; and
• Shares of the Judgment Debtor in a partnership

In addition, an HDB flat cannot be seized without the permission of HDB.

Examination of Judgment Debtor’s Assets

To ascertain the assets of the Judgment Debtor, the Judgment Creditor can apply for leave of court (the permission of the court) for an examination of the Judgment Debtor.

The leave of court is sought via ex parte summons supported by an affidavit. 

“Ex parte” means that a legal proceeding is brought by one party without any notification to any other party.  

“Summons” are applications to the court made by involved parties, which specifies the orders sought from the court, while an affidavit is a signed statement made on oath or on affirmation.

After the application is secured, the court will require the Judgment Debtor to attend before a court registrar. The court registrar will assess the Judgment Debtor assets and where they’re located, and order any supporting documents to be furnished to the court.

This information will be granted to the Judgment Creditor as well.

 Application for WSS

There are 2 types of WSS:

• WSS for movable property; and
• WSS for immovable property.

WSS for Movable Property

Usually, a leave of court is not required to apply for a WSS for movable property.

However, leave of the court will be required if:

• 6 years or more have passed since the date of the Judgment
• Where there have been changes with regards to the Judgment Creditor or Judgment Debtor (for example, death)
• The court Judgment is against the assets of a deceased person which are under custody of the deceased person’s executors or administrators
• Where movable property to be seized is in a receiver’s custody. For example, the assets of an insolvent company may be managed by a creditor appointed receiver.
• Any person who is granted relief under court judgement, subject to the fulfilment of a condition, which has been allegedly satisfied. For example, under a suspended order for possession, although the Judgment Creditor has been granted possession of a mortgaged property, this possession may not be enforced as long as the condition that debtor continues to pay the creditor instalments due is fulfilled.

Where leave of the court is required, an application must be made by ex parte summons supported by an affidavit.

The grounds of this request are specified in the affidavit. In this case, the affidavit must:

• Identify the court judgment
• Identify the amount due under Judgement
• State any change in the parties since the date of the Judgment
• State reasons for the delay in enforcing Judgment if 6 years have passed since the date of judgment
• Specify that an order was made on the Judgment Debtor to satisfy the Judgment, but that the Judgment Debtor was unable to satisfy the judgment
• Provide any information as necessary to justify that Judgment Creditor is entitled to execute the judgment and the Judgment Debtor is liable for the judgment debt

WSS for Immovable Property

Unlike movable property, a leave of court is required for a WSS for immovable property. The application for the leave of court must be made by ex parte summons supported by an affidavit.

The affidavit must satisfy the following:

• Identify the Judgment and the Judgement Debtor
• Specify the outstanding debt due under Judgment at the date of the application
• State the property to be seized
• Establish, with evidence, that the property belongs to the Judgment debtor

The Judgement Creditor can apply for WSS after a leave of court is obtained. 

Before Executing the WSS

If the Judgment Debtor Applied for a Stay of Execution

Prior to executing the WSS, the Judgment Debtor may apply for a stay of execution on the grounds that he is unable to repay the Judgment debt. A stay of execution temporarily stops the Judgment Creditor from administering the judgment and carrying out his WSS.

The Judgment Debtor can also apply for a stay of execution on the grounds of special circumstances. Such circumstances may be that the Judgment Debtor wants to appeal on the judgement passed and that the appeal would have little value should the Judgment Creditor liquidate the assets taken in. 

If this happens, the Judgment Debtor will be unable to reclaim them from the Judgment Creditor should the appeal be successful. Hence, this may be a legitimate reason for applying for a stay of execution.

Applications for a stay of execution are done by an inter partes summons, served on the Judgment Creditor, supported by an affidavit specifying the reasons for the application.

Inter partes means that one or more parties involved in the lawsuit are being notified of the application and will be required to attend a court hearing, where the application may be contested.

Where the application is made arising from the applicant’s inability to pay, the affidavit must state:

• Judgment Debtor’s inability to make payment
• Judgment Debtor’s income.
• Nature and value of assets owned by the Judgement Debtor and his liabilities

Where the application is made on reasons of special circumstances, elaboration of those circumstances must be included in the affidavit.

How Is the WSS Executed?

Upon successful application of the WSS, the Judgement Creditor will receive an appointment letter from a Bailiff with a date of execution.

On the appointment date, the Judgement Creditor (or his representative) must present the following to the Bailiff assigned to the case:

• The appointment letter (issued by the Bailiff)
• An official receipt to confirm that a deposit of $300 or such amount as requested by the Bailiff, has been paid at the Finance Section of the State Courts; and
• A Letter of Authorisation and Indemnity signed by the Judgment Creditor. A letter bearing the firm’s stamp should be furnished if the Judgement Creditor is a business entity.

The Judgement Creditor will need to provide transport for the Bailiff to the Judgment Debtor’s premises to carry out the Writ Of Seizure and Sale, if required.

Accessing the Judgment Debtor’s Premises

If the Judgement Debtor’ premises are accessible, the Bailiff will enter and seize items identified by the Judge Creditor (or his representative), marking them with an official label.

After the seizure, the Bailiff will serve the Judgement Debtor an official notice not to remove or tamper with the marked items, as well as all the necessary documents of the procedure.

The Judgement Debtor is encouraged to cooperate with the Bailiff throughout the WSS process and not attempt to interfere with or remove marked property from the premises as this may constitute an offence of theft.

If the Judgment Debtor’s Premises Are Not Accessible or Judgment Debtor Resists the Execution of the WSS

If the premises are inaccessible or if the Judgment Debtor resists the WSS process, the Bailiff will serve and leave a notice at the premises.

Usually, on the first attempt of execution of the WSS, the Bailiff will not employ his powers of forced entry onto the Judgement Debtor’s premises.

If the first attempt of the execution of the WSS was unsuccessful, it is possible to request for another attempt to carry out the WSS. The Judgement Creditor will have to apply for a new execution date and pay the requisite fees.

On the second or subsequent attempts, the Bailiff may use his powers of forced entry onto the premises of the Judgement Debtor’s premises. In practice, this is only carried out with the help of a professional locksmith. The cost of engaging a locksmith is borne by the Judgement Creditor, as well as any additional costs, such as transportation costs of the Bailiff.

After the Seizure of Assets or Property under WSS

After the assets or property has been seized, the Judgement Debtor will be given 7 days to settle any outstanding debts with the Judgement Creditor.

If the Judgement Creditor does not receive a settlement of judgement debt during this period, he can arrange to proceed with an auction sale of the seized assets.

Filing for an Auction Sale

An application for an auction sale is made by filing a request to proceed with the auction and paying the requisite fees where applicable.

The Bailiff may request for a comprehensive valuation report of the seized property to be submitted before setting the auction date. Any charges when generating this report are borne by the Judgement Creditor.

Once the request to proceed with an auction is filed, a Notice of Sale must be placed at the auction venue at least 7 days before the auction date. The Bailiff will inform the Judgement Creditor of the auction date through a letter.  

The Judgement Creditor will also have to appoint an auctioneer approved by the Bailiff at least 3 weeks or 7 days before the auction date (subjected to what is stated in the Bailiff’s letter). Any auctioneer’s fees and expenses will be borne by the Judgement Creditor.

The auction date may be any time between 3 to 5 weeks from the date of service of the Notice of Sale, subject to availability of dates and validity of the WSS.

What Happens if an Auction Is Not Carried Out?

If the Judgement Creditor does not proceed with the auction, the WSS will cease and he will need to obtain a new WSS should he choose to pursue the matter in the future.

The Bailiff has the authority to release any or all of the items seized, under his discretion.

Do You Need to Engage a Lawyer in the WSS Process?

A Writ of Seizure and Sale is just one method used to enforce a court judgement with regard to civil cases. As the process can be lengthy and involves complex legal proceedings, you are strongly advised to engage a qualified lawyer to assist you in enforcing your court judgements.