Written by Team Farallon
A court order is usually the result of a motion brought before the court. A judgment is made at the end of a court case. It sets out the rights and obligations of parties and it resolves legal disputes.
Subsequent to successfully contesting a lawsuit in either the Small Claims Tribunal, the Magistrates Court, the High Court or the Court of Appeal, the successful party .i.e. the judgment creditor, is required to enforce his court judgment in order to obtain the relief he seeks from the judgment debtor. The relief can be monetary or non-monetary.
Should the judgment creditor fail to enforce it, the court judgment or order will not take effect.
Enforcement is also necessary in situations where the judgment debtor is not able to or refuses to comply with the court judgment or order.
The essence of enforcement of a court order or judgment is that the judgment debtor will have to pay damages, deliver property or to abstain from certain conduct.
There are several types of enforcement options available to a judgment creditor, most of which will be executed through a law firm in Singapore – all of which this article will outline.
Prior to pursuing formal enforcement, a judgment creditor will need to consider the following:
An order obtained from the Small Claims Tribunal ordering money payments to be made to the judgment creditor will usually be accompanied by a deadline for payment. The judgment debtor’s failure to pay will result in the judgment creditor having to take up up separate enforcement proceedings against him.
The letter of demand is a letter which sets out a list of demands that the recipient has to comply with. In the context of enforcing court orders, its purpose is primarily to warn the judgment debtor of the judgment creditor’s intention to take up further proceedings should the former not comply with the court order.
The judgment creditor should contact the judgment debtor or send him a letter of demand requiring payment to be made before a certain a time.
In the case of Small Claims Tribunal actions, the judgment debtor would already have access to the order of tribunal and be aware of the stipulated deadline for payment. What would then need to happen would be for the judgment creditor to contact the judgment debtor in order for the two of them to agree on an amicable resolution.
If the judgment debtor refuses to comply and appears to have assets of sufficient value, the judgment creditor may initiate enforcement proceedings. The most common enforcement method adopted by litigants is that of the writ of seizure and sale.
The writ of seizure and sale enables the judgment creditor to request the court to seize the property of the judgment debtor in order to pay the judgment debt. The court seizes such property through a bailiff. A bailiff is an officer of the court who is authorised to deal with enforcement proceedings commenced by parties in respect of court judgments and orders.
The bailiff may access the judgment debtor’s premises in order to seize his property. Such property can later be sold at a public auction.
This route may be considered if the judgment creditor is quite certain that the judgment debtor’s physical assets are of sufficient value to be sold with the purpose of recovering the costs of enforcement and paying the amount owed as per the court judgment.
Most types of movable and immovable property can be seized with the exception of the following five:
Furthermore, a flat that the judgment debtor bought from the Housing and Development Board (HDB) cannot be seized without the approval of the HDB.
In Singapore, all applications for WSS are made through the eLitigation system through a law firm in Singapore. The judgment creditor has the choice to either appoint a lawyer to make the application on his behalf or to file the application himself at a CrimsonLogic Service Bureau.
The two types of WSS that exist are as follows:
The judgment creditor generally does not need to obtain leave from the court to apply for a WSS in respect of the movable property.
Leave of the court will only be required where:
Whenever the leave of the court has to be obtained, an application for leave must be made in the form of an ex parte summons together with a supporting affidavit.
The affidavit is there for purposes of setting out the grounds for the application. The affidavit must:
A judgment creditor has to obtain the leave of the court to apply for a WSS in respect of immovable property. Just like in cases involving movable property, the application for the leave of the court must be lodged by way of an ex parte summons accompanied by a supporting affidavit.
The affidavit must do the following:
Once he has obtained the leave of the court, the judgment creditor may then apply for a WSS via a registered law firm in Singapore
Subsequent to the judgment creditor obtaining the WSS, the judgment debtor may apply for a stay of execution on the basis of his inability to pay the judgment debt.
A stay of execution is a court order that delays the judgment creditor in his enforcement of the judgment and in his execution of the WSS.
The judgment debtor may also apply for a stay of execution on the basis of special circumstances. An example of such a circumstance would be that the judgment debtor intends to make an appeal.
Applications for a stay of execution are to be made by way of an inter partes summons served on the judgment creditor coupled with a supporting affidavit stating the grounds for the application.
The term “inter partes” means that the application will be served on one or more of the litigants and he will have to attend a court hearing where he will have the opportunity to contest the application.
If the application is made on the grounds of the judgment debtor’s inability to pay, the affidavit must state the:
For an application made on the grounds of special circumstances, the supporting affidavit must thoroughly explain these circumstances.
If the judgment debtor’s application for a WSS is successful, he will receive an appointment letter from the bailiff informing him of the date that has been fixed for execution.
Provided that the premises are accessible, the bailiff will enter the judgment debtor’s premises and may seize items pointed out to him by the judgment creditor or his representative. He will then mark them with an official sticker and they will consequently become seized property.
The bailiff will thereafter serve the necessary forms or documents on the judgment debtor including a notice not to tamper with or remove the seized property.
The bailiff generally does not exercise his powers of forced entry on the premises at the first attempt at execution. He serves or leaves a notice at the premises.
On the second or subsequent attempts at execution, the bailiff may choose to exercise his powers of forced entry. Forced entry is only conducted with the assistance of a professional locksmith.
The judgment debtor is given seven days to satisfy all debts owed to the judgment creditor.
After the seizure, the judgment creditor can choose to proceed with an auction of the sale of the seized property if he still has not received payment on the outstanding judgment debt.
The judgment creditor will have to apply for an auction sale by filing the “Request to Proceed with Auction” via eLitigation. The auction date will be communicated to him through a letter sent by the bailiff.
An auctioneer selected by the bailiff must then be contacted by the judgment creditor seven days or three weeks before the auction date – depending on the time frame stipulated in the bailiff’s letter. The judgment creditor bears the auctioneer’s fees.
The WSS will be aborted if the judgment creditor does not proceed with the auction sale. Upon engaging the services of a lawyer, he may consider filing a new WSS.
The bailiff may release any or all of the seized items at his discretion.
Under a writ of delivery, the court orders the judgment debtor to deliver certain movable property to the judgment creditor. The court may also give the judgment debtor the option of keeping the property by paying the judgment creditor the assessed value of the property.
A writ of possession is used in property relations. It is a court order usually served on a tenant (judgment debtor) by a landlord (judgment creditor) and it requires the tenant to vacate the premises by a certain time – enabling the landlord to repossess his property.
The examination of the judgment debtor to determine his assets is commenced by the judgment creditor. He has to file an ex parte application supported by an affidavit. “Ex parte” means that the application is not served on any party. Simply put, there are no opponents to the proceedings. An affidavit is a sworn statement.
If the court grants the judgment creditor the leave for an examination of the judgment debtor, the court will order that the judgment debtor appears before a court registrar and be orally examined. Such an examination would be based on whatever property the judgment debtor has wheresoever it is situated. The court may also require the judgment debtor to present any books or documents he has that are relevant for purposes of the examination.
The information obtained from the examination is subsequently made available to the judgment creditor.
In instances where a third-party (such as an employer or a bank) owes money to the judgment debtor, garnishee proceedings can be pursued so that the garnishee pays the money to the judgment creditor instead of the judgment debtor. Garnishee proceedings therefore do not involve the seizure and sale of property nor do they involve a transfer of possession or delivery of the property.
To commence this process the judgment creditor should apply for a provisional garnishee order. Such an application is made up of an ex parte summons and a supporting affidavit.The provisional garnishee order is to be personally served on both the garnishee and the judgment debtor. This would be followed by show cause proceedings where the third party – the garnishee – confirms that there is money owed to the judgment debtor. The court will then make a final garnishee order ordering the garnishee to make the payment to the judgment creditor. For a provisional garnishee order to not be made final, a garnishee must be able to demonstrate that there is reasonable ground to the contrary.
The garnishee may be held to be in contempt of court if he fails to comply with the garnishee order by, for example, disposing of the money attached by the court.
The committal order comes into play where a judgment debtor fails to obey a court order. It entails the judgment creditor applying to the court to have the judgment debtor sanctioned by way of a fine or imprisonment.
The purpose of a committal order is to punish the judgment debtor for not complying with the court order and to maintain the authority and dignity of the court. In these cases, the court exercises its discretion based on the facts of the case.
In instances where the judgment debtor has assets located in a foreign jurisdiction, the judgment creditor together with the assistance of a legal professional can enforce his judgment abroad. This would be on the condition that the legal requirements of the foreign jurisdiction are satisfied.
If the judgment debtor is not financially able to pay the debts he owes to the judgment creditor, the judgment creditor may lodge bankruptcy or winding up proceedings against the judgment debtor. The type of proceedings would depend on whether the judgment debtor is an individual or a company.
The judgment creditor would apply for bankruptcy proceedings if the judgment debtor is an individual who is not able to pay debts of at least S$15,000.
A winding up application is what the judgment creditor would apply for if the judgment debtor is a company. The process of winding up – or liquidation – entails the seizing of a company’s assets and converting them into cash. It is the proceeds from the seized assets that are then used to clear the company’s debts and liabilities.
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