Enforcement of Judgments

Question 1

Who is a judgment debtor?

Answer 1

A party against whom a judgment is to be enforced

Question 2

Who is a judgment creditor?

Answer 2

A party in whose favor a judgment is to be enforced.

Question 3

There are a number of methods available for the enforcement of judgments. the method(s) selected will be guided by what?

Answer 3

• the nature of the judgment (i.e. whether or not it is a money judgment)
• nature of the assets of the judgment debtor

Question 4

True or False.

Once 6 years have passed since a judgment was entered, no enforcement proceedings can be brought against the judgment debtor.

Answer 4

False.

Permission is needed

Question 5

What part of the rules deals with oral examination?

Answer 5

Part 44

Question 6

What is an order for oral examination?

Answer 6

it is not an enforcement mechanism but is more an aid to enforcement.

A procedure by which the judgment creditor is able to examine the judgment debtor and obtain information to assist in enforcing judgment such as the debtor’s assets and means, as well as their liabilities or obligations.

Question 7

What is the procedure for oral examination?

Answer 7

The procedure involves the judgment creditor applying, without notice, for an order for oral examination.

The order must state the date, time and place of the examination.

The order is then served by the judgment creditor on the judgment debtor, personally, at least 7 days before the date fixed for examination and an affidavit of service should be filed not less than 3 days before.

where the judgment is for a sum of money the debtor may be served, in addition to or in place of an order for oral examination, with a financial position notice requiring the debtor to complete the statement of his/her financial position and serve it on the creditor within 14 days of service.

The judgment creditor may notify the court if satisfied with the information in the statement and the court must then notify the debtor that he need not attend the examination.

Question 8

How does oral examination aid in enforcement proceedings?

Answer 8

The details obtained in this process may inform the other means of enforcing the judgment and the court may, where the parties agree that the judgment debt should be paid by installments or at some future date, draw an order to that effect.

Question 9

Discuss the procedures available for enforcing a money judgment where the judgment debtor is known to have shares

Answer 9

a charging order

Question 10

Discuss the procedures available for enforcing a money judgment where the judgment debtor is known to have computers

Answer 10

order for seizure and sale

Question 11

Discuss the procedures available for enforcing a money judgment where the judgment debtor is known to have a motor vehicle subject to a bill of sale in favor of another creditor

Question 12

Discuss the procedures available for enforcing a money judgment where the judgment debtor is known to have a lucrative job with a monthly salary, and expected to pay a significant incentive in months

Question 13

Discuss the procedures available for enforcing a money judgment where the judgment debtor is known to have A house in respect of which there is a mortgage to financial institution, with considerable furnishings and artwork

Question 14

A claimant obtains a judgment against a defendant for 20,000.

The defendant filed a notice of appeal and a stay of execution.

The claimant wishes to proceed with enforcement.

outline what your advice to the client must include.

Answer 14

• payment of the money is payable upon the judgment being made and so you can proceed with enforcement proceedings immediately and the court’s permission is not required
• Enforcement is subject to no order for stay of execution being made. A stay has been filed and if granted you will not be able to collect on the judgment debt pending the outcome of the appeal
• If you collect any monies now and the appeal is successful you will have to return the monies received

Question 15

True or False.

The general rule is that , once a judgment has become enforceable, the court must issue an enforcement order if the judgment creditor files the appropriate form of request

Answer 15

True.

Question 16

What part of the rules deals with Order for seizure and sale?

Answer 16

Part 46

Question 17

What order may be used to enforce against chattels owned by the judgment creditor?

Answer 17

An order for seizure and sale of goods

Question 18

what is the procedure to obtain an order for seizure and sale of goods?

Answer 18

The procedure is to file the order which is issued by the court. Once the order is issued by the court, it is given to a bailiff who must execute it in accordance with the Rules.

Goods may be sold to cover both the judgment debt and the costs of enforcement.

(1) A judgment creditor may recover on a writ of execution -
(a) the balance of any money judgment (including costs);
(b) fixed costs in accordance with rule 65.3; and
(c) interest on a money judgment (at the statutory rate of interest unless the court has directed otherwise)

if filed after 6 years, an application, without notice, for permission to issue a writ of execution must be filed supported by affidavit evidence.

A writ of execution is valid for a period of twelve months beginning with the date of its issue. However, you may apply to renew it. The general rule is that you should apply within the period in which the writ is still valid.

The Court will only renew it for a period of not more than six months

Notwithstanding the renewal, the effective date is therefore still that of the writ as originally issued

Question 19

What is an Attachment of debts (garnishee proceedings)

Answer 19

a procedure under which a judgment creditor may apply for an order under which amounts due from a third party (the garnishee) to the judgment debtor may instead be ordered to be paid by the garnishee directly to the judgment creditor.

Question 20

What part of the rules deals with the attachment of debts orders?

Answer 20

Part 50

Question 21

What is the procedure for obtaining an Attachment of Debts order?

Answer 21

There are two stages in the procedure. First, the judgment creditor applies without notice for a provisional attachment order. The provisional order is then served on the garnishee and the judgment debtor (practically in that order)

the provisional order indicates a date on which the Court is to consider whether the provisional order should be made final. On that occasion, the judge may either discharge the provisional order or make a final order.

Question 22

which outstanding debts does the rules allow to be attached?

Hint: Timing

Answer 22

The Rules allow for the attachment of
-debts outstanding at the date of the provisional order up to the date for hearing ofo the final order.

The order can be used for debts outstanding but not yet due for payment (payment due after the final order)

But not in respect of obligations not yet incurred (such salary not yet earned)

Question 23

which outstanding debts does the rules allow to be attached?

Hint: Timing

Answer 23

The Rules allow for the attachment of
-debts outstanding at the date of the provisional order up to the date for hearing of the final order.

The order can be used for debts outstanding but not yet due for payment (payment due after the final order)

But not in respect of obligations not yet incurred (such salary not yet earned)

Question 24

when should a judgment creditor consider the option of seeking the appointment of a receiver?

Answer 24

Where there are future debts owed by a third party to the Judgment creditor

Question 25

On what ground may the order for attachment of a debt be refused?

Answer 25

if it would be inequitable to grant it.

Question 26

What part of the rules deals with charging orders?

Answer 26

Part 48

Question 27

What is a charging order? when is it sought?

Answer 27

a charging order may be sought in respect of shares and other personal property of the judgment debtor.

The charging order is to charge the specified property with the judgment debt and any transfer of it being good against the judgment creditor.

Question 28

What is the procedure for obtaining a charging order?

Answer 28

An application for a charging order is made without notice, supported by affidavit evidence.

evidence include:

The affidavit in support of the application should list the interested persons and they must also be served with the provisional order and the affidavit in support. They may object to the final order by filing objections 14 days before the final order hearing

in the first instance, the court will deal with the application without a hearing of the application without notice, the court may make the provisional order and (if so) the order should specify when and where the Court will consider making a final charging order.

Question 29

True or False.

a charging order extends to cover the judgment debt, interest, and costs even if it does not expressly say so.

Answer 29

True.

Question 30

What is a judgment summons?

Answer 30

a procedure under which an application to commit a judgment debtor to prison may be made.

An order for committal may be made only after the summons has been properly served on the judgment debtor.

An order commonly made is for the debt to be paid in installments, with the hearing of the judgment summons being adjourned. That way, if the instalments are not being met, the creditor may proceed with its application to have the debtor committed.

Question 31

What enforcement procedure is often combined with or follows the procedure for oral examination?

Answer 31

Judgment Summons.

often combined with or follows the procedure for oral examination as one of the things the court must examine before making a committal order is the means of the judgment debtor.

Question 32

List the different methods of enforcing judgments for payment of money

Hint: OSCAR J

Answer 32

• Order for Oral Examination
• Order for seizure and sale
• Attachment of Debts (garnishee proceedings)
• Charging order
• Judgment Summons
• Appointment of receiver

Question 33

How is the Appointment of receiver used to enforce judgments?

Answer 33

the Rules proved for the appointment of a receiver to obtain payment of the judgment debt from the judgment debtor’s income or capital assets.

The application is generally to be made with notice unless an immediate injunction is also required.

In determining whether to order a receiver the court must take into account:
- the amount of the judgment debt
- the amount expected to recover through receivership
- the probable cost of appointing and remunerating the receiver

the receiver’s remuneration is to be approved by the court, and the Court must direct the receiver to file accounts verified by affidavit.

Question 34

What enforcement methods exist for enforcing judgments for the delivery of goods?

Answer 34

the issue of a writ of specific delivery, empowering the bailiff to seize the goods specified in the judgment.

the issue of a writ of delivery (i.e. general delivery), empowering the bailiff to seize the goods specified in the judgment or goods up to the value (specified in the judgment) of the goods forming the subject matter of the judgment.

Question 35

What enforcement methods exist for enforcing judgments for the possession of land?

Answer 35

At common law, a claimant may enter the property of which he/she is adjudged to be entitled to possession, once judgment has been obtained, and take possession of it, provided no force is used.

The claimant can obtain a warrant or writ of possession (and will need one if forcible eviction is necessary.)

Acting on the writ the bailiff ought to turn out everyone on the premises, even if they are not parties.

Question 36

what are contempt orders?

Answer 36

A contempt of court consists of interfering with the administration of the law.

The most common example is disobeying an order requiring the contemnor to take or refrain from taking specified action.

Upon contempt being proved, the court may make one of a number of orders including
- imprisonment
-confiscation of assets (sequestration).