How to Get an Order for Seizure and Sale to Enforce a Judgment
Having obtained a court order in your favour, you (the Judgment Creditor) can take out an enforcement action against the other party (the Judgment Debtor) if the Judgment Debtor has not complied with the court order.
To comply with the court order means to pay the judgment debt (as specified in the court order) owed to the judgment creditor.
In all civil claims (which typically involves a private party suing another private individual or organisation), the Judgment Creditor is responsible for enforcing the judgment (i.e. taking action to ensure that the Judgment Debtor pays the judgment debt).
On the other hand, in criminal trials (where the State is involved in prosecuting accused persons), the State is actively involved in ensuring that convicted persons serve out their sentences.
An enforcement order for seizure and sale of property (previously known as a “Writ of Seizure and Sale”) is one of the options available for enforcement of court orders.
What is an Enforcement Order for Seizure and Sale of Property?
Under an enforcement order for seizure and sale of property, the Judgment Creditor can request the court, who then authorises the Bailiff, to seize property belonging to the Judgment Debtor to pay the judgment debt. Bailiffs are officers of the court who are empowered to handle enforcement proceedings commenced by parties in respect of court orders.
The Judgment Debtor’s premises may be accessed in order to seize his/her property. The seized property may later be sold via public auction (see below).
This option may be considered if the Judgment Creditor is reasonably certain that the Judgment Debtor has physical assets of sufficient value that may be sold to recover the costs of enforcement, and pay the amount owed as stated in the court order.
Examination of Judgment Debtor to Determine His/Her Assets
To determine what assets the Judgment Debtor has or where the assets are located, the Judgment Creditor can apply to obtain the court’s permission (previously known as an “application for leave”) for an examination of the Judgment Debtor. This application is made via summons without notice supported by an affidavit. An affidavit is a signed statement made on oath.
“Summons without notice” means that no other parties, whether a party to the lawsuit or not, are being served with the application. It may also be known as an “ex parte summons”.
“Summons” are applications to the court, made by parties to a lawsuit, which state the orders sought to be obtained from the court. Applications to the court are made via the Integrated Electronic Litigation System (eLitigation).
If the court’s permission is obtained, the court will order the Judgment Debtor to attend before a court registrar. The court registrar will question the Judgment Debtor as to what assets he has and where they are located, and order any supporting documents to be provided to the court.
Such information will be made available to the Judgment Creditor.
What Can and Cannot be Seized Under the Order for Seizure and Sale of Property?
Generally, most types of movable and immovable property can be seized, with the exception of the following:
- Clothes and bedding of the Judgment Debtor or his family, when the value of such items do not exceed $1,000;
- Wages or salary of the Judgment Debtor (which can instead be claimed through enforcement proceedings for attachment of a debt – previously known as “garnishee proceedings”);
- Tools that may be necessary to enable the Judgment Debtor to earn his living (e.g. where he/she is an artisan or agriculturist), where the value of such tools does not exceed $1,000;
- Pension, gratuity or allowance granted by the government;
- Shares of the Judgment Debtor in a partnership.
Also, an HDB flat cannot be seized without the HDB’s approval.
How Do I Apply for an Enforcement Order for Seizure and Sale of Property?
All applications for an enforcement order for seizure and sale of property (whether this property is movable or immovable) are made via a summons without notice and filed through the eLitigation system. You may appoint a lawyer to make the application on your behalf or file the application yourself at a CrimsonLogic Service Bureau.
Your application will need to be supported by an affidavit stating information such as:
- The terms of the court order
- The Judgment Debtor’s name and address
- The date that the court order was served on the Judgment Debtor
- The terms of the court order that the Judgment Debtor has not complied with, and that are hence to be enforced
- The amount of money that is still outstanding
The application for an enforcement order for seizure and sale of property can be made 3 days after the service of the court order on the Judgment Debtor at the earliest.
Prior to Executing the Enforcement Order for Seizure and Sale of Property
If the Judgment Debtor applied for a stay of enforcement
After the Judgment Creditor obtains a enforcement order for seizure and sale of property, the Judgment Debtor can apply for a stay of enforcement (previously known as a “stay of execution”) to temporarily prevent the Judgment Creditor from enforcing the judgment and executing his enforcement order for seizure and sale of property.
For the stay of enforcement to be granted, the Judgment Debtor must be able to show a “special case” making it inappropriate to enforce the court order immediately. This could be where:
- The Judgment Debtor is unable to pay the judgment debt
- The Judgment Debtor intends to appeal (i.e. request the court to review the judgment debt) and allowing the Judgment Creditor to seize the Judgment Debtor’s property now would mean that the appeal has little practical value. This could be where the Judgment Creditor is likely to dissolve the assets taken in execution, such that the Judgment Debtor is unable to reclaim them from the Judgment Creditor should the appeal be successful.
Applications for a stay of enforcement must be made by an inter partes summons, served on the Judgment Creditor, supported by an affidavit stating the grounds of the application.
Inter partes means that one or more parties to the lawsuit are being served with the application and will have to attend a court hearing, where he may contest the application.
Where the application is made on the grounds of 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 and liabilities.
Where the application is made on the grounds of other special cases, the affidavit must explain those circumstances.
For example, the affidavit could state and justify the Judgment Debtor’s belief that the assets which have been seized by the Judgment Creditor are likely to be dissipated by the Judgment Creditor.
How is the Enforcement Order for Seizure and Sale of Property Carried Out?
If your application for an enforcement order for seizure and sale of property is successful, you will receive an appointment letter from a Bailiff to inform you of the date fixed for the carrying out of the enforcement order.
On the appointment date, you or your authorised representative must hand the following over to the Bailiff assigned to your case (as indicated in the appointment letter):
- The appointment letter (issued by the Bailiff)
- The official receipt to confirm that you have paid the deposit of $400 or such amount as requested by the Bailiffs; and
- A Letter of Authorisation and Indemnity signed by you. If you are a business entity, the letter should bear your firm’s stamp.
If requested by the Bailiff, you would be required to provide transport for the Bailiff to the Judgment Debtor’s premises for the purposes of executing the enforcement order for seizure and sale of property.
Accessing the Judgment Debtor’s premises
If the premises are accessible, the Bailiff will enter the Judgment Debtor’s premises and may seize items identified by you (or your representative) and mark them accordingly with an official sticker.
After the seizure, the Bailiff will serve the necessary forms/documents on the Judgment Debtor including a notice not to remove or tamper with the seized items.
If the Judgment Debtor’s premises are not accessible or Judgment Debtor refuses/resists the execution of the enforcement order for seizure and sale of property
If the premises are not accessible or if the Judgment Debtor refuses/resists the execution of the enforcement order for seizure and sale of property, the Bailiff will serve or leave a notice at the premises. Unless your case had been heard in the General Division of the High Court, the Bailiff generally will not exercise his power of forced entry onto the premises on the first attempt at execution.
If execution of the enforcement order for seizure and sale of property is not successful on the first attempt, it is possible to request for another attempt to execute the enforcement order. You will then have to apply for a new appointment date by filing the “Request for Date to be Appointed for Execution” and pay the requisite fees (see below).
The Bailiff may choose to exercise his powers of forced entry onto the premises on the second or subsequent attempts. In practice, forced entry is only conducted with the assistance of a professional locksmith.
You may be required to engage the services of a locksmith on your own and at your own cost. You may also need to cover the Bailiff’s transport expenses, should this be requested by him/her.
What Happens After the Property has been Seized?
The Judgment Debtor is given 7 days to settle all sums owing to you.
Following the seizure, if you still do not receive payment on the outstanding judgment debt, you can choose to proceed with an auction sale of the seized property.
Filing for an auction sale
An application for an auction sale is made by filing the “Request to Proceed with Auction” through eLitigation and paying the requisite fees where applicable.
The Bailiff may require that a valuation report of the seized items be prepared and submitted before fixing the auction date. The valuation charges are to be borne by you.
Once the “Request to Proceed with Auction” is filed, a Notice of Sale must be posted at the place where the auction will take place at least 7 days before the date of the auction. You will be informed of the auction date through a letter sent by the Bailiff.
The auction date may be within 1 to 5 weeks from the date of service of the Notice of Sale, subject to availability of dates and the validity of the enforcement order for seizure and sale of property.
You will then have to contact and appoint an auctioneer at least 7 days or 3 weeks before the auction date (depending on what is stated in the Bailiff’s letter). The auctioneer’s fees and expenses will also be borne by you.
What happens if I do not proceed with the auction sale?
If you do not proceed with the auction sale, your enforcement order for seizure and sale of property will be aborted. You may then wish to obtain legal advice about filing a fresh enforcement order for seizure and sale of property.
The Bailiff may also exercise his discretion to release any or all of the items seized.
Filing Fees and Other Related Expenses
The filing fees associated with an enforcement order for seizure and sale of property would depend on which court/tribunal issues the court order you are seeking to enforce. The associated filing fees include:
|Small Claims Tribunals / Employment Claims Tribunals
|General Division of the High Court (for claims of up to $1 million)
|Request for date to be appointed
|Undertaking, Declaration and Indemnity
|Request to proceed with auction
Other expenses may also be incurred. These expenses include (assuming the case was heard in a tribunal, Magistrate’s Court or District Court):
- Deposit: At least $400
- Bailiff’s attendance fee: $50 per hour or part thereof
- Court Commission: To be informed by the State Courts Bailiffs Section
- Auctioneer’s fee: Market rate
You may be able to recover your expenses if the enforcement order for seizure and sale of property is successfully executed and the proceeds of sale of the seized items are sufficient to cover both the judgment debt and the expenses incurred.
However, if the proceeds of sale are insufficient to cover any expenses arising from the Bailiff’s execution of the enforcement order for seizure and sale of property, any outstanding sums will be deducted from the deposit amount.
An enforcement order for seizure and sale of property is just one of the methods used to enforce a court order issued pursuant to civil proceedings. You may wish to seek legal advice as to whether such an enforcement order is appropriate for your situation.
Feel free to get in touch with one of our civil litigation lawyers should you need any assistance in this regard.
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