ENFORCING JUDGMENTS - 1
• "JUDGMENT CREDITOR" means the person who is entitled to enforce a judgment or order;
• " JUDGMENT DEBTOR" means the person who is liable to enforcement under the judgment or order, even though the judgment or order is not a money judgment .
♦ NATURE OF THE JUDGMENT
♦ NATURE OF THE ASSETS OF THE JUDGMENT DEBTOR
♦ NO STAY OF EXECUTION IN PLACE
♦ GENERALLY NO PERMISSION NEEDED BUT EXCEPTIONS
INSTANCES IN WHICH PERMISSION REQUIRED for writ of execution
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♦ See the Form in the Rules
♦ The Notice requires the JD to complete a statement of his financial position and serve it on the JC within 14 days of service.
♦ If JC satisfied he may file such notice at Registry and notify the Examinee that he need not attend.
♦ Takes place before the Registrar or officer of the Court authorised by Chief Justice
♦ Examination is on oath or affirmation
♦ Statement to be taken down, read to the ExaMinee who is to be asked to sign it
♦ If he refuses to sign then Examiner to sign
♦ May be adjourned to a Judge if Examinee fails to attend, refuses to be sworn or affirmed or to answer any question.
♦ Notice of Adjourned Hearing
♦ See Form in Rules
♦ JC to serve the Examinee personally with the Notice of Adjourned Hearing not less than 7 days before the adjourned examination and file an Affidavit proving service.
♦ Cross Examination in nature - probing questions expected.
AN ORDER FOR SEIZURE AND SALE OF GOODS
Writ of execution - Part 46
The JD's chattels are seized and sold to meet the judgment debt.
EXECUTION OF THE ORDER
> See Form of the Order in the Rules
> May not execute between 6pm and 6am
> May take all goods and chattels except:
- Clothing and bedding of JD and family;
- Tools and implements of trade to a stated value
- Goods insufficient to meet the debt.
> The goods may be sold at public auction after:
- Advertised in at least one newspaper
- Except where perishable - not less tan 5 days after seizure
> JC may request an earlier sale
> Pending sale deposit the goods in a fit place
> Bills of Exchange
> Payment to the AG
> Valid for one year
What may be recovered
• 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.
• The rate of interest payable on a judgment debt is the statutory rate of interest unless the court has directed that some other rate shall apply.
• Unless the court otherwise orders, the amount for which a writ of execution may be issued may include the unpaid fixed costs and fees of any previous enforcement proceedings on the same judgment.
Period of validity of the writ of
♦valid for one year
♦MUST APPLY FOR RENEWAL OF WRIT
> WITHIN THE PERIOD THE WRIT IS VALID
>Court to be satisfied the JC took al reasonable steps to execute but unable to do so.
> Without notice but on Affidavit evidence >May renew for no more than 6 months
> Attaching debts to the JD in the hands of a third party.
> Often utilised where there are bank accounts, other deposit taking institutions, building societies.
> Two step...