In our second issue in our series of articles on enforcement of judgments, we discuss warrants to seize property and sale, possession, charging and garnishee orders. All these options provide the judgment creditor with rights of recourse towards the judgment debtor’s assets.
Before you decide to apply for these orders, you need to consider whether the judgment debtor owns assets that could be pursued to satisfy the debt. This information might already be known by the time you obtain judgment. However, if it is not, there are several methods of assessing the judgment debtor’s asset position. These methods are discussed in our previous issue.
Warrant to seize property
This procedure is available in relation to the judgments obtained at the District Court.
A warrant to seize property enables a bailiff appointed by Court to visit the judgment debtor and seek payment of the judgment debt. If the judgment debtor does not pay, the bailiff can seize and sell any personal assets of the judgment debtor, except for:
- The judgment debtor’s tools of trade to a value not exceeding $5,000.00; and
- The judgments debtor’s necessary household furniture and effects, including clothing for the judgment debtor and their family, to a value not exceeding $10,000.00.
When the bailiff visits the judgment debtor, they will have identification and the warrant document with them. Bailiffs have legal rights to enter the judgment debtor’s property and take items which they believe belongs to the judgment debtor. If, after the seizure, the judgment debtor does not pay within 7 working days, the bailiff will sell the property at a public auction, and will apply funds from the sale to pay for any seizure and storage costs, and the remainder will be paid towards the judgment creditor’s debt.
The warrant cannot be used to cease and sell land. If the judgment creditor is willing to sell land, the judgment needs to be transferred to the High Court, where a sale order can be obtained (discussed below).
This procedure is also only available at the District Court.
If a third party owes the judgment debtor money, the judgment creditor may apply to Court for that money to be paid directly to the judgment creditor. A garnishee order can be a useful tool to the judgment creditor as it may attach to money in bank account or solicitor’s trust account.
In the High Court, similar effect can be achieved through a sales order.
This procedure is available in relation to judgments obtained at the High Court, or judgments from the District Court which are subsequently transferred to the High Court.
A sale order authorises a bailiff appointed by Court to seize personal property belonging to the judgment creditor and sell it to satisfy the judgment debt. In addition, it can also entitle the bailiff to sell land.
Sales orders have similar limitations in relation to the sale of the judgment debtor’s tools of trade and necessary household furniture of low value as under a warrant to seize property.
A possession order authorises and requires the bailiff to deliver possession of the land or chattels to the judgment creditor. Possession orders are available where the judgment orders the judgment debtor to deliver possession of land or chattels to the judgment creditor.
If a judgment orders the judgment debtor to pay a sum of money and to deliver possession of land or chattels to another party, the judgment creditor may apply for both, sale and possession orders.
A charging order prevents the judgment debtor from selling their property until the judgment debt is repaid. These orders are available in both, District Court and High Court.
Obtaining a charging order is a relatively quick process. Charging orders are usually obtained before the sale and/or possession orders to ensure that the judgment debtor does not dispose of the property by the time the sale and/or possession orders are made and administered. If the judgment debtor owns land, once the charging order is obtained, it entitles the judgment creditor to place caveat on the land’s title.
All of these options are useful tools for judgment creditors to consider if the judgment debtor owns valuable assets. These methods are efficient, as they usually result in a prompt payment.
If the proceeds from the sale are not sufficient to satisfy the debt in full, other enforcement options, such as an attachment order which was discussed in our previous issue, could be obtained in combination with these orders.
If you are considering applying for a warrant to seize property or sale, possession or charging orders, it is likely that legal assistance will be required, we invite you to contact our specialists for a no obligation discussion.