Professional Documents
Culture Documents
*note: I have updated the provisions for ROC but the lecture notes and the muggers are still old. The
lecturer himself gave provisions fr the prev ROC.
• Post judgement issues – judgement already gotten – judgement creditors – person against whom u are
seeking to enforce judgement – judgement debtor
• The importance of enforcement of judgment and orders cannot be understated. It is crucial to be able to
convert the judgment obtained into monetary terms for your client.- after rigmarole of trial, this is the most
impt thing.
• There are many modes of execution that one may rely on. However, one should also note that costs are
incurred each time one mode of execution is relied upon.
• Fit the right method of enforcement for any given situation
Concepts:
• The person who has obtained a judgment or order for payment by some other person – called the “judgment
creditor” (usually plaintiff or defendant who succeeds on counterclaim)
• The person against whom a judgment or order for payment has been made – called the “judgment debtor”
(usually the defendant, unless counterclaim)
Issues:
• When deciding which mode of execution to rely on, it is very important to consider one fundamental
question: Is leave of the court required? (for most cases leave is required)
• If leave of the court is required – this means tt must apply t court for nec order before proceeding further
• the most common mode of application is by way of Summons-in-Chambers supported by
affidavit.
• The affidavit must comply strictly with the requirements laid down under the ROC. The court
has no jurisdiction to grant an application if the requirements under the ROC are not complied
with.
• May result in unnec adjournment – need to then come back to court by which time defendant
may have dissipated his assets – lost benefits of what you might have gotten
• => Must ensure that affidavit contains ALL reqd
Considerations
- Before deciding what mode of execution to rely on, the following considerations should be taken into
account:
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• 5 days given normally; 5 – 7 days. Say clearly you are giving him notice to make payment in 5 days,
otherwise will proceed.
• Serve copy of judgement – let him see
• Then he is to pay within certain time as designated in letter
MODES OF EXECUTION
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(2) The Sheriff or his officers in executing any writ of seizure and sale or any other writ of execution or of
distress may effect an entry into any building, and for that purpose if necessary may break open any outer or
inner door or window of the building or any receptacle therein, using such force as is reasonably necessary to
effect an entry.
- Generally NO Requirement to Seek LEAVE of the court to issue a Writ of Execution - except in some
cases laid down under Order 46, rule 2: -
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(d) stating, where the case falls within Rule 2 (1) (c) or (d), that a demand to satisfy the judgment or order
was made on the person liable to satisfy it and that he has refused or failed to do so; and
(e) giving such other information as is necessary to satisfy the Court that the applicant is entitled to
proceed to execution on the judgment or order in question and that the person against whom it is sought to
issue execution is liable to execution on it.
(3) The Court hearing such application may grant leave in accordance with the application or may order that any
issue or question, a decision on which is necessary to determine the rights of the parties, be tried in any manner
in which any question of fact or law arising in an action may be tried and, in either case, may impose such terms
as to costs or otherwise as it thinks just.
(a) where 6 years or more have lapsed since the date of the judgment or order;
- [the supporting affidavit must identify judgment or order – and stating the reasons for the delay in
enforcing the judgment or order – must be a plausible reason for court to accept]
(b) where any change has taken place, whether by death or otherwise, in the parties entitle or liable to execution
under the judgment or order; [ie: one party has died]
- [the supporting affidavit must identify judgment or order – and stating the change which has taken place
in the parties]
(c) where the judgment or order is against the assets of a deceased person coming into the hands of his
executors or administrators after the date of the judgment or order;
- [the supporting affidavit must identify judgment or order – and stating that a demand to satisfy the
judgment or order was made on the person liable to satisfy it and that he has refused or failed to do so.]
(d) where under the judgment or order any person is entitled to relief subject to the fulfillment of any condition
which it is alleged has been fulfilled; [ie: need to go to court to show that the condition has been satisfied]
- [the supporting affidavit must identify judgment or order – and stating that a demand to satisfy the
judgment or order was made on the person liable to satisfy it and that he has refused or failed to do so.]
(e) where any movable property sought to be seized under a writ of execution is in the hands of a receiver
appointed by the Court.
- Order 46, rule 2(3) – Where the Court has granted leave for the issue of a writ of execution, and the
writ is not issued within 1 year after the date of the order granting such leave, the order shall cease to
have effect.
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- Or if contested, then matter will be tried
o Parties to go before judge and have issue heard and ruling then will b made accordingly
A) Writ of Seizure and Sale – enforcement of money judgements
• Writ of Seizure & Sale - is the most common mode of execution relied on and the most reasonable in terms
of costs.
• The judgment creditor makes a request to the Sheriff (High Court) or the Bailiff (Subordinate Courts) to
seize and sale the assets of the judgment debtor. The sheriff / bailiff would attach stickers on the specific
assets belonging to the judgment debtor, which would be subsequently auctioned off.
• Against moveable property usually eg office equipment/ textiles/ electronic goods etc
• Order 45, rule 12(1) - The writ of seizure and sale must be in Form 82 (for movable property).
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Forms of writs (O. 45, r. 12)
12. —(1) A writ of seizure and sale must be in Form 82 (for movable property) or Form 83 (for immovable
property).
(2) A writ of delivery must be in Form 84.
(3) A writ of possession must be in Form 85.
• Order 45, rule 4(2) – Before the writ of execution is issued, a praecipe in one of the forms in Form 92
for its issue must be filed. The praecipe must be signed by the solicitor of the person entitled to
execution.
• Order 46, rule 11 - Before any writ of execution is executed, the execution creditor (judgment creditor)
must file a praecipe in Form 93A for a date to be appointed for the execution.
Deposit for costs of execution and date for execution (O. 46, r. 11)
11. —(1) Before any writ of execution or distress is executed, the person at whose instance the writ was issued
(referred to in these Rules as the execution creditor) must, if the Sheriff so requests —
(a) deposit in the Registry a sufficient sum of money to defray the costs of the execution; and
(b) file a Request4 in Form 87 or 89 for a date to be appointed for the execution.
(2) Where the execution creditor has caused a date appointed for the execution to be vacated or postponed, the
Sheriff may, if he thinks that such vacation or postponement is without good reason, direct that any fee paid and
expenses incurred by the execution creditor in respect of the appointment shall not be recovered by the execution
creditor as a disbursement.
(3) For the purposes of paragraph (2), where the execution creditor has filed a Request4 in Form 87, the fee for
the request for a date to be appointed shall be limited to the amount specified in item 104 of Appendix B.
• Order 46, rule 6(1) – For the purpose of execution, the writ is valid for 12 months beginning with the
date of the issue. Can apply for extension before its expiration.
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(b) in the case of a writ of delivery, the transfer of possession of the movable property by the Sheriff to the
judgment creditor; and
(c) in the case of a writ of possession, the transfer of possession of the immovable property by the Sheriff to the
judgment creditor.
(3) Before a writ the validity of which has been extended under this Rule is executed, the writ must be marked in
Form 3 showing the date on which the order extending its validity was made.
(4) The priority of a writ, the validity of which has been extended under this Rule, shall be determined by
reference to the date on which it was originally issued.
(5) The production of a writ of execution, purporting to be sealed as mentioned in paragraph (3), shall be
evidence that the validity of that writ has been extended under this Rule.
• Papers to be filed
o WSS
o Precipae – form 92 (request of sorts)
o Another precipae for date of execution (form 93A)
• Order 46, rule 14 to 27 – deals with the manner of execution and the duties of the Sheriff.
o File Form 88
o File praecipe for execution in Form 92
o Court fixes appointment date
o On designate date, clients accompany sheriff to place of execution. Sieves through assets to
the tune of the judgment debt
o After seizure, sheriff gives notice of seizure and inventory in Form 94. Sheriff will determine
value of assets based on his experience – seizure that takes place – amt seized is usually much
less than judgement itself
o Sheriff places stickers on the assets and gives notice of sale of seized items in From 95
o Sheriff advertises and publishes auction of the assets.
o After auction, sheriff deducts his charges and passes client the money.
• Order 46, rule 16 – Where any movable property is seized by the Sheriff under a writ of execution, the
Sheriff must give to the execution debtor (judgment debtor) a notice of seizure in Form 90 – Notice of
Seizure and Inventory.
• If removed, then sheiff will give ntice to relevant parties and then can apply to corut for various
committal proceedings against judgement debtor
• Order 46, rule 23 – Sale by public auction: Sheriff must post on the board of the Registry a notice in
Form 95 of the day, hour and place of any intended sale in Form 95. – NOTICE OF SALE
• Order 46, rule 24 – Where the value of the property seized is estimated to exceed $2,000, the sale must
be conducted by a licensed auctioneer appted by the sheriff and the sale must be publicly advertised.
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o Proceeds of aucitn given to sheriff and he will deduct his commission or costs and balance
sum (usually not enough to pay judgemnt debt) is then paid to plaintiff and solicitors
Where property exceeds $2,000 sale by authorised auctioneer (O. 46, r. 24)
24. —(1) Where the value of the property attached or seized is estimated by the Sheriff to exceed $2,000, the sale
must, unless the Sheriff otherwise orders, be conducted by an authorised auctioneer and the sale must be publicly
advertised by the Sheriff or auctioneer once 14 days before the date of sale.
(2) In any other case, the sale may be conducted by the Sheriff.
• Order 47, rule 6(1) - Stocks and shares may also be seized and sold. This Rule requires a notice in
Form 88B to be made if the property to be seized consists of any Government stock or company stock.
- Who files first gets it first. So must file WSS expeditiously AND properly – must immed proceed and
file it when get instructions
o Priority depends on date and time of filing
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Sale of securities (O. 47, r. 7)
7. —(1) Stock seized under Rule 6 may be sold through the agency of a broker.
(2) If the indicia of title are not in the possession of the Sheriff, he may apply to the Court for such directions as
may be necessary to give effect to the sale.
- In high court, person entrusted is sheriff; in sub courts this is the bailiff
Interpleader Summons – Order 17, rule 1: When there is a 3rd Party’s Claim
(3rd Party = claimant; Judgment Debtor = Defendant)
• Offshoot of WSS
• If sheriff is chargd with exeuctin and any f goods that he so seized is claimed by third party: then sheriff
muyst have matter interpleaded ie does nt take position as to whether goods beling to judgement
creditor or third party (if latter then creditor x get anything)
o Two conflicting claims
o He does not decide bvased on merits of ownership
o He will ask judge and interplead and file interpleader summons under O17
• Order 17, rule 2(1) - The claimant (ie: the 3rd party) must give notice of his claim in Form 22:
“Notice by Claimant of Property taken by Seizure” – it is a notice informing the sheriff not to sell the
seized assets.
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• Order 17, rule 2(2) – On receiving the claim, the Sheriff must give notice of the claim in Form 24 to
the ‘execution creditor’. The execution creditor must within 4 days after receiving the Sheriff’s notice,
give notice in Form 30 informing the Sheriff whether he admits or disputes the claim.
o If the execution creditor admits to the claim, the assets are returned/released to third party.
(No cost involved if execution CR does not dispute the claim. Matter ends there and goods are
returned)
o If the execution creditor disputes the claim, then the Sheriff may apply to the Court for relief
by way of interpleader (important to note that the interpleader summons is filed by the
sheriff!!) because dispute is then crystallized at this pt
o R3(2) – This interpleader summons is to allow the court to determine the ownership of the
assets that were seized. Affidavits must be filed by both parties which are called the ‘claimant’
(ie: the 3rd party) and the ‘defendant’ (judgment debtor).
o To affirm tt no subj matter in assets seized, does not side with any party and leaves it to
court to determine ownership of parties
o Claimant to est ownership of goods – that he purchased it, paid for it, these are his and do not
belong to the judgement debtor
o Judgement creditor to show tt goods do belong to judgement debtor and this is all a scam –
must be careful and get evidnce and have cort make order that goods belong to judgemnt
debtor
• The Registrar will decide whether the assets that were seized belonged to the claimant (3rd party
claimant) or the defendant (judgment debtor). If the Registrar decides that the assets belonged to the
defendant (judgment debtor), the execution creditor (judgment creditor) may continue to proceed with
the enforcement of the WSS. If the Registrar decides that the assets actually belonged to the claimant,
then this is the final position.
o (i) summarily determine the question at issue between the claimants and make an order
accordingly in such terms as may be just (no need for a trial, just submission of affidavits);
OR
o (ii) to order the issue to go for trial, and the Registrar will draft the question which should be
determined by the trial judge.
Qn: Whether goods seized on so and so day… as follows.. the following goods..
whether belong to claimant or creditor
That is the issue – WHO owns the proceeds
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whom adverse claims to the subject-matter in dispute (referred to in this Order as the claimants) appear, the
Court may order —
(a) that any claimant be made a defendant in any action pending with respect to the subject-matter in dispute in
substitution for or in addition to the applicant for relief under this Order; or
(b) that an issue between the claimants be stated and tried and may direct which of the claimants is to be plaintiff
and which defendant.
(2) Where —
(a) the applicant in an originating summons or a summons under this Order is the Sheriff;
(b) all the claimants consent or any of them so requests; or
(c) the question at issue between the claimants is a question of law and the facts are not in dispute,
the Court may summarily determine the question at issue between the claimants and make an order accordingly
on such terms as may be just.
(3) Where a claimant, having been duly served with an originating summons or a summons for relief under this
Order, does not appear on the hearing or, having appeared, fails or refuses to comply with an order made in the
proceedings, the Court may make an order declaring the claimant, and all persons claiming under him, forever
barred from prosecuting his claim against the applicant for such relief and all persons claiming under him, but
such an order shall not affect the rights of the claimants as between themselves.
• Purpose = attach interest of judgment debtor on the immovable property and upon registration, interest will
be seized by sheriff.
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Sale of immovable property (O. 47, r. 5)
5. Sale of immovable property, or any interest therein, shall be subject to the following conditions:
(a) there shall be no sale until the expiration of 30 days from the date of registration of the order under Rule 4 (1)
(a);
(b) the particulars and conditions of sale shall be settled by the Sheriff or his solicitor;
(c) the judgment debtor may apply by summons to the Court for postponement of the sale in order that he may
raise the amount leviable under the order by mortgage or lease, or sale of a portion only, of the immovable
property seized, or by sale of any other property of the judgment debtor, or otherwise, and the Court, if satisfied
that there is reasonable ground to believe that the said amount may be raised in any such manner, may postpone
the sale for such period and on such terms as are just;
(d) the judgment creditor may apply to the Court for the appointment of a receiver of the rents and profits, or a
receiver and a manager of the immovable property, in lieu of sale thereof, and on such application, the Court may
appoint such receiver or receiver and manager, and give all necessary directions in respect of such rents and
profits or immovable property;
(e) where the interest of the judgment debtor in any immovable property, seized and sold under the order,
includes a right to the immediate possession thereof, the Sheriff shall put the purchaser in possession;
(f) pending the execution or endorsement of any deed or document which is ordinarily lawfully required to give
effect to any sale by the Sheriff, the Court may by order appoint the Sheriff to receive any rents and profits due to
the purchaser in respect of the property sold; and
(g) the Sheriff may at any time apply to the Court for directions with respect to the immovable property or any
interest therein seized under the order and may, or, if the Court so directs, must give notice of the application to
the judgment creditor, the judgment debtor and any other party interested in the property
• Order 45, rule 12(1) - The writ of seizure and sale must be in Form 83 (for immovable property)
• Order 47, rule 4(1a) - The seizure of the immovable property shall be effected by the act of registering the
writ of seizure and sale in Form 88A (which is called ‘the order’) attaching the interest of the judgment
debtor in the immovable property. Upon registration, such interest shall be deemed to be seized by the
Sheriff.
• Registration takes place with sg land auth and upon registering, there is seizure that comes into effect
• LEAVE IS REQUIRED –T AKE OUT EX PARTE SUMMONS WITH AFFIDAVIT
o Affidavit needs to contain:
Identify judgement obtained – exhibit copy of judgment in affidavit
State name of judgement debtor
Amt unpaid
Specify propertrty (the address)
Confirm that the property in fact belongs to the judgement debtor – title search will
suffice to show ownership
• Once obtained order to proceed with WSS, msut register it with sg land authority
• After Regis, judgment creditor files precipae for directions to the sheriff – 95D
• Then file directions under 95E and serve copy of order and notice of seizure on judgement debtor under 95F
• Valid for 6 mths – can apply to extend by sep application – must e taken p before expiration of 6 mths
• Court may on applic of judgment debtor or other party who has interst n claim apply to have it released
o So can apply to have WSS released on suff cause being shown
o On assumptn tt proceeds/ manner of execution is as follows
30 days must lapse fr dat of Regis before proceeding to sell property
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conds and terms of sale must be setllted by sheriff - completion date, how option to be
exercised, etc
judgement debtor may apply for postponement of the sale if can show tt there are
reasonable grds tt he can raise amt sum to satisfy sum of judgement
satisfy court before writ is released
• Order 49 on Garnishee Proceedings Garnishee Proceedings are very commonly relied on.
• NOTE: You will need to know the bank account number of the judgment debtor.
• If certain sum of money due by third party to judgement debtor, as judgemnt creditor, can proceed against
third paty and garnish the sum of money to satisfy judgement
• Order 49, r 1 - The “garnishee” (ie: bank), who is indebted to the judgment DRr, may be ordered by Court
to pay to the judgment CR the amount owed in satisfaction of the judgment or order.
- ** There must be a “debt due or accruing due” to the judgment debtor by the garnishee. In other
words, there is creditor-debtor relationship between the garnishee and the judgment debtor.
- 1957 3 SLR(??) 344 – Dunlop limited v henry steel
- Includes money in current account or deposit account.with a bank
- Must be money due to judgment debtor by garnishee
- Must be a relationship of creditor and debtor between (vis a vis) judgment debtor and garnishee.
- Need leave from court.
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Kedah Kelang Papan Sdn Bhd V Hansol Sdn Bhd (Teknibina Advisory Services Sdn Bhd Garnishee)
[1988] 1 MLJ 434
Facts:
The judgment creditor was the plaintiff in a civil suit and the judgment debtor was the defendant in that case.
After obtaining judgment in his favour, the judgment creditor applied to court to claim from the garnishee certain
sums of money totalling $101,716.51 which the garnishee owed the judgment debtor under a building contract.
The issue was whether the sum of $101,716.51 cound be attached under O 49 r 1 of the Rules of the High Court
1980. The Senior Assistant Registrar made the garnishment order absolute. The garnishee appealed.
Held, dismissing the appeal:
(1).no garnishee order can be made unless the person, at the time when the order is made, is indebted to
the judgment debtor. It is not enough to show that it is very probable that there soon will be a debt;
(2).a debt, legal or equitable, can be attached whether it be a debt owing or accuring. A debt is a sum of
money which is now payable or will become payable in the future by reason of a present obligation. The
words "or accruing" in O 49 r 1 are intended to apply to cases in which there are debts owed at the
present time but payable in the future. An accruing debt, therefore, is a debt not yet actually payable but a
debt which is represented by an existing obligation;"
(3).in the instant case, the sum of $65,801.98 retained by the garnishee was in effect a fixed sum which had
already been earned by the judment debtor. In other words, the retention money was carved out of the contract
price of that part of the work which had already been done by the judgment debtor and thereby they had earned
the money arising from the carrying out of such work. There could not, therefore be any dispute that the sum
retained represented a debt due from the garnishee to the judgment debtor, albeit payable after the expiry of the
defective liability period;
(4).in garnishing proceedings, the law is concerned only with any cross-claim or cross-debt existing at the
date of the attachment and not a cross-claim or cross-debt that may come into existence some time in the
future, however likely it may arise. In the instant case, whatever cross-claims the garnishee may against
the judgment debtor in respect of defective works which may arise subsequently did not represent a cross-
cl;aim or cross debt existing at the date of the attachment;
(5).the learned judge, accordingly,held that the sum of $65,801.98 retained by the garnishee as retention money
could rightfully be attached;
(6).as for the sum of $454,491.22 already released by the garnishee to the judgment debtor upon their production
of a bank guarantee, the learned judge held that that amount could be attached under the gatnishee order which
can only operate on debts due and owing by the garnishee to the judgment debtor and not in a transafction
involving a third person who is not a party to the proceeding;
(7).the order of the Senior Assistant Registrar was, accordingly, affirmed by the learned judge.
Cases Referred To (Precedents) Cases):
• Tapp v Jones (Pooley, Garnishee) [1874-75] LR 10 QB 591
• Webb v Stentoin & others, Garnishee [1882-1883] 11 QBD 518
• O`Driscoll & Anor v Manchester Insurance Committee [1915] 3 KB 215
• Hall & Anor v Pritchett (The Corporation of Huddersfield, Garnishees) [1877-78] 3 QBD 215
• Dunlop & Ranken Ltd v Hendall Steel Structures Ltd (Pitchers Ltd Garnishee) [1957] 3 All ER
344,[1957] 1 WLR 1102
1. First step: Application for ‘show cause’ order in Form 98 - (stimes called decree nisi order akin to
divorce sitn)
(2) An order in Form 101 under this Rule shall in the first instance be an order to show cause, specifying the time
and place for further consideration of the matter, and in the meantime attaching such debt as is mentioned in
paragraph (1), or so much thereof as may be specified in the order, to answer the judgment or order mentioned in
that paragraph and the costs of the garnishee proceedings.
- Leave required:
- Order 49, rule 2 – deals with the content of the application for order. The application for an order to ‘show
cause’ must be made ex parte by Summons supported by an affidavit in Form 102, identifying the
following:
o (1) identifying the judgment or order to be enforced
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o (2) stating the amount remaining unpaid at the time of the application (might be paid in parts);
and
o (3) stating whether the ‘garnishee’ is within jurisdiction and is indebted to the judgment
debtor.
- Will then get show cause order
- Order 49, rule 3(1) – Service of ‘show cause” order – The order to show cause must be served on the
garnishee personally & on the judgment debtor.
o - show case order operates as an equitable charge. Garnishee cannot pay money to anyone else
or receipt of show cause order without incurring risk of paying twice over (can’t deal with the
money.)
- O49 r3 (2) – Effect of Service – The order will bind in the hands of the garnishee as from the service of the
order on him any debt specified in the order. It does not operate as transfer of property. It is only an
equitable charge. The effect is that the garnishee on receiving show cause order cannot pay the sum to any
other party without incurring the risk of having to pay twice over, ie precluded fr dealing wth money in acct
once show cause order is served on him.
- Therefore, the show order has the effect of creating an equitable charge over the debt owed to the judgment
debtor. (so garnishee runs risk of paying twice if it pays to the debtor in disregard of the show cause order)
- If he attends court and challenges it, then same as interpleader – court will determine matter summarily or
try the matter.
- If garnishee does not attend court or challenge it, court will then make order absolute:
• Order 49, rule 4 – The Court may make an order absolute in Form 100 against the garnishee.
- The matter is heard before the court, who may make an ‘order absolute’. The order is then served on the
garnishee who will have to pay the money directly to the judgment creditor.
- - time for garnishee to appear before court, decree absolute order. Garnishee does, court will summarily
enter the issue or order a trial of the matter.
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3. dispute then summary determination or order trial of issue - Order 49, rule 5
5. Payment that garnishee made pursuant to order of court is a valid discharge of his liability: Order 49,
rule 8
• Order 73 r 13 – O49 (garnishee order) does NOT apply; instead apply for restraining order
- Receiver is appointed where there are various interest in property which judgment debtor may be entitled.
Receiver not appointed by court unless there’re impediments.
- Appointment of receiver is expensive. So court has to be satisfied that amount involved is substantial.
Receiver will be in best position to obtain realization of the assets.
- Court can direct that enquiry be held. Not popular way of executing judgment because of cost implications
but if large assets over many countries, good to have receivers (professionally trained).
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- See Order 51 on Receivers: Equitable Execution. This is NOT a common mode of execution because of
the costs involved in this mode.
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Enforcement of judgment to do or abstain from doing an act (O. 45, r. 5)
5. —(1) Where —
(a) a person required by a judgment or order to do an act within a time specified in the judgment or order refuses
or neglects to do it within that time or, as the case may be, within that time as extended or abridged under Order
3, Rule 4; or
(b) a person disobeys a judgment or order requiring him to abstain from doing an act,
then, subject to these Rules, the judgment or order may be enforced by one or more of the following means:
(i) with the leave of the Court, an order of committal;
(ii) where that person is a body corporate, with the leave of the Court, an order of committal against any director
or other officer of the body;
(iii) subject to the provisions of the Debtors Act (Chapter 73), an order of committal against that person or, where
that person is a body corporate, against any such officer.
(2) Where a judgment or order requires a person to do an act within a time therein specified and an order is
subsequently made under Rule 6 requiring the act to be done within some other time, references in paragraph (1)
to a judgment or order shall be construed as references to the order made under Rule 6.
(3) Where under any judgment or order requiring the delivery of any movable property the person liable to
execution has the alternative of paying the assessed value of the property, the judgment or order shall not be
enforceable by order of committal under paragraph (1), but the Court may, on the application of the person
entitled to enforce the judgment or order, make an order requiring the first mentioned person to deliver the
property to the applicant within a time specified in the order, and that order may be so enforced.
• See Order 52 – The Court or the Court of Appeal have the power to punish for contempt of Court by an order of
committal in Form 110.
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2-Step Procedure:
(i) Order 52, rule 2(1) – Must first obtain Leave to apply
- orig summons or by summons in proceedings itself
- file statement – in this statement –
• set out name and descriptn of applicant
• the person sought to be committed – name and descriptn
• need to est grds on which committal sought
- file affidavit verifying facts on which proceeding – must be evid before court tt mode of enforcement
nec in circumstances of the partr case
(ii) Order 52, rule 3 – Apply for committal order by summons after leave has been granted:
o Once leave to apply has been granted, the judgment creditor may apply for an order for committal.
The application for the order of committal must be made by summons
- tools available to make judgment debtor comes up with payment or proposal for payment. To deal with
recalcitrant judgment debtor who don’t want to pay.
- must be served personally on the person sought to be committed at least 8 clear days before the hearing
- Order must be obgtained within 14 days after leave is granted
- If not leave will automatically lapse – ie need to start all over again
- When committal order made Court can suspend execution or discharge person sought to be committed
- Warrant for committal is obtained after committal order made to enforce or put into effect order for
committal – form 110
- Cases:
o AG v times newspapers 1991
o Chiltern district council v keane 1985
o Linkleter v linkleter 1988
o Re supply of ready mixed conicrete 1991
o Nicholls v nicholls 1997
o Miller v scorey 1996
Using disclosed documents in second action with similar parties may be a contempt,
depending significantly upon whether any undertaking, express or implied was given.
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The court struck out an action where proceedings were commenced in reliance on
documents produced on discovery in an earlier action, where the consent of the court had
not been obtained prior to the commencement of the second action
JUDGMENTS FOR POSSESSION OF LAND – ORDER 45, RULE 3 (by Writ of Possession / Order of
Committal )
• Usually when acting for ll, and have order for possession and damges but tenant x vacate premises
o So proceed by this method
• Order 45, rule 3(1) – judgment for possession of land may be enforced by
• (a) writ of possession (Form 90 – O45 r12(3)) OR
• precipae under form 92C
• (b) an order of committal when rule 5 applies. This is based on the assumption that the judgment
creditor has obtained a writ of possession.
[Note: Order 45 Rule 5 deals with where a person is required by a judgment or order to do an act, or to abstain
from doing an act, and the person refuses, neglects or disobey the judgment or order.]
• Order 45, rule 3(2) - leave is required; affidavit setting out the usual.
• Order 45, rule 3(3) – Leave will not be granted unless it is shown that every person in actual possession has
received notice of proceedings so that they can apply for relief. Ie must est tt notice has been given.
• Order 45, rule 3(4) - Can also deal with payment of money – not exclusive to land
• Order 15 rule 10
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(2) An application by any person for an order under this Rule may be made by ex parte summons, supported by
an affidavit showing that he is in possession of the immovable property in question and if by a tenant, naming
him.
(3) A person added as a defendant by an order under this Rule must serve a copy of the order on the plaintiff and
must enter an appearance in the action within such period, if any, as may be specified in the order or, if no period
is so specified, within 7 days after the making of the order, and the Rules as to entry of appearance shall apply
accordingly to entry of appearance by him.
JUDGMENT FOR DELIVERY OF MOVABLE PROPERTY – Order 45, Rule 4 – (Writ of Delivery)
• Order 45, rule 4 – deals with enforcement of judgment for delivery of movable property. The judgment
may be enforced by writ of delivery.
(i) Order 45, rule 4(1) - Judgment or order for the delivery of movable property with NO alternative to
pay the assessed value of the property (leave of the court is required) (eg Picasso painting)
(ii) Order 45, rule 4(2) - Judgment or order for the delivery of movable property with alternative to pay
the assessed value of the property (leave of the court is not required)
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[Note: Rule 5 deals with where a person is required by a judgment or order to do an act, or to abstain from doing
an act, and the person refuses, neglects or disobey the judgment or order.]
• Order 45 rule 4(3) – Writ of delivery of movable property may include provision for enforcing payment of
money.
• Order 48 - deals with order for examination of judgment debtor. This Order is very commonly relied on.
When do not knomw assets belonging to debtor and want to orally examiue him on assets he has
• It is an order to compel attendance of judgment debtor for the Registrar to orally examine the judgment
debtor on the assets he owned, their location and produce documents relevant to the questions.
• To ascertain his assets and enforce judgement on best way possible
• Not effective however – by the time this is done, he may have already dissipated it
• Order 48, rule 1(1) – Leave of court required - Application for order for examination of judgment debtor is
to be made ex parte by summons supported by affidavit in Form 99 by the judgment creditor. The
affidavit shall state:
(i) Judgement
(ii) Amt due etc
(iii) the reasons for seeking examination of the judgment debtor
(iv) specifying the documents that the judgment creditor wants the judgment debtor to bring to
court.
• Order 48, rule 1(2) – The order must be in Form 100 and must be served personally on the judgment
debtor and on any officer of a company ordered to attend examination.
• He is to do so under oath and if he does not can take into to acct
• Order rule 1(1) – Questions for Examination include:
o Property judgment DR has,
o Where the property are situated
o Produce any documents or books in possession of judgment DR relevant to questions above at time
and place appointed for examination.
• Note: Judgment CR XX judgment debtor on the stand.
• Types of Injunctions:
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• Order 45, rule 5(1) – deals with the enforcement of an injunction by an order for Committal under 2
specific circumstances (breach of prohibitive injunction or time prescribed mandatory injunction)
Judgment, etc., requiring act to be done: Order fixing time for doing it (O. 45, r. 6)
6. —(1) Notwithstanding that a judgment or order requiring a person to do an act specifies a time within which
the act is to be done, the Court shall, without prejudice to Order 3, Rule 4, have power to make an order requiring
the act to be done within another time, being such time after service of that order, or such other time as may be
specified therein.
(2) Where, notwithstanding Order 42, Rule 6 (1), or by reason of Order 42, Rule 6 (2), a judgment or order
requiring a person to do an act does not specify a time within which the act is to be done, the Court shall have
power subsequently to make an order requiring the act to be done within such time after service of that order, or
such other time, as may be specified therein.
(3) An application for an order under this Rule must be made by summons and the summons must,
notwithstanding anything in Order 62, Rule 10, be served on the person required to do the act in question.
See - 1993 1 SLR 616 – highest std of crim charge reqd before order for committal can be obtained. Reqd by way
of summons or affidavit and order to be served personally on person concerned.
• Elements of Culpability - Before court makes order for committal proceedings, the standard of proof that is
required is proof beyond reasonable doubt intent of committal.
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o Need leave of Court made ex parte summons supported by affidavit – O52 r2(2)
o After leave, application by motion for order of committal – O52 r3(1)
o To be served personally.
• Need to specify time for compliance in case of Mandatory Orders (ordering person to do sthg within time
specified) – O45 R5(1) and R6
• Order 50, rule 1(2) – Procedure for applying for stop order (need Leave): Must file an affidavit
identifying the securities in question and the party’s interest in them; and file a notice in Form 106
addressed to the Accountant-General or the company (as the case may be).
• Order 50, rule 2 - Effect of [service of] Stop Notice: Neither the company or the Accountant-General (as
the case may be) may register any transfer of any securities or may any payment of any dividend without
informing the applicant. Ie preserve assets
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transfer or make the payment for longer than 8 days after receipt of the request except under the authority of an
order of the Court.
• Order 50, rule 4 - Withdrawal of stop notice: The person on whose behalf a notice was filed may
withdraw it by serving a request for its withdrawal on the Accountant-General or (as the case may be), the
company.
• Order 50 rule 5 – Restraining Order: Order prohibiting transfer of shares (including gov shares) may by
order in From 107 prohibit the Accountant-General or that company from registering any transfer of that
stock or from paying any dividend or interest.
MISCELLANEOUS - OTHERS:
a. S43 Sub Courts Act – payment by instalments – order 47 rule 1A. no similar provision in HC though no
reason why this does not also apply there.
b. Enforcement Under The Debtors Act – s17 Debtors Act (Attachment order / arrest)
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Where judgment for payment of money has not been satisfied, Court can arrest the debtor
if it appears to the court that there is probable reason for believing that he is likely to
leave Singapore to avoid payment of money / examination of his affairs.
Arrest possible even if writ of execution has not been issued.
Debtors Act
Arrest of judgment debtor.
3. Where a judgment for the payment of money remains wholly or in part unsatisfied, whether a writ of execution
has issued or not, the court or a judge may order the debtor to be arrested and brought before the court forthwith
for examination as hereinafter provided, if it appears to the court or judge that there is probable reason for
believing, having regard to his conduct, or the state of his affairs, or otherwise, that he is likely to leave
Singapore with a view to avoiding payment of such money or to avoiding examination in respect of his affairs.
Debtors Act
17 – (1) Seizure of property before judgment
If it is shown to the satisfaction of the court or a judge, at any time after the issue of a writ of summons, by
evidence on oath, that the plaintiff has a good cause of action against the defendant, and —
a) that the defendant is absent from Singapore and that his place of abode cannot be discovered;
b) that service of a writ of summons cannot without great delay or difficulty be effected; or
c) that the defendant, with intent to obstruct or delay the execution of any judgment which has been or may be
made against him, has removed, or is about to remove, or has concealed, or is concealing, or making away
with, or handing over to others, any of his movable or immovable property,
the court or judge may order that the property of the defendant, or any part thereof, be forthwith seized by the
Sheriff of the Supreme Court as a pledge or surety to answer the just demand of the plaintiff, until the trial of the
action and satisfaction of any judgment that may be made against the defendant; but such order shall not
constitute the plaintiff a secured creditor if the defendant is adjudicated bankrupt:
Provided that any property of the defendant, if in the custody of any officer in the service of the Government, or
of any member of the Singapore Armed Forces or of any visiting forces lawfully present in Singapore, in his
official capacity shall be seized only with the consent in writing of the Attorney-General.
Emjay Enterprises Pte Ltd v Thakral Brothers (Private) Ltd & Ors [2000] 3 SLR 452
- Held: On the facts of the present case, the criteria for the issuance of an ex parte attachment order under
section 17 of the Debtors Act had been satisfied.
- First, there could be no doubt that the defendants had a good cause of action against the debtors, for they had
obtained judgment by admission within two weeks of commencement of their action.
- Secondly, the first and second debtors were not in Singapore at the time of the application, and although it
was known that they had left for India, their actual place of abode could not be discovered. The third debtor
was in Singapore but his exact whereabouts was unknown.
- Thirdly, the circumstances of the case supported an inference that the third debtor had the intention to
conceal and make away with Shah Electronics` stock-in-trade.
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• For the enforcement of foreign judgment in Singapore, can rely on:
(i) Reciprocal Enforcement of Commonwealth Judgments Act (RECJA) (Chapter 264)
(ii) Reciprocal Enforcement of Foreign Judgments Act (REFJA) (Chapter 265)
RECJA
Registration in Singapore of judgments obtained in superior courts in the United Kingdom.
3. —(1) Where a judgment has been obtained in a superior court of the United Kingdom of Great Britain and
Northern Ireland the judgment creditor may apply to the High Court at any time within 12 months after the date
of the judgment, or such longer period as may be allowed by the Court, to have the judgment registered in the
Court, and on any such application the High Court may, if in all the circumstances of the case it thinks it is just
and convenient that the judgment should be enforced in Singapore, and subject to this section, order the judgment
to be registered accordingly.
REFJA
Application for, and effect of, registration of foreign judgment
4. —(1) A person, being a judgment creditor under a judgment to which this Part applies, may apply to the High
Court at any time —
a) within 6 years after the date of the judgment; or
b) where there have been proceedings by way of appeal against the judgment, after the date of the last
judgment given in those proceedings,
to have the judgment registered in the High Court.
• Order 67 deals with Reciprocal Enforcement of Judgments – The powers conferred on the HC under the
RECJA and REFJA may be exercised by a Judge in Chambers and the Registrar.
Burswood Nominees Ltd (formerly Burswood Nominees Pty Ltd) v Liao Eng Kiat [2004] 2 SLR 436
(3) The doctrine of comity of nations was not to be taken lightly by the courts in Singapore. It was not within
the purview of a Singapore court to question the legality of a judgment obtained in a court of competent
jurisdiction. BN should therefore be allowed to register in Singapore the judgment granted by the Western
Australian court: at [30].
Judgement:
- Counsel for the applicants submitted that the basis of registration or enforcement of foreign judgments is the
doctrine of comity of nations. It is also founded on the doctrine of obligation in that the judgment of a court
of competent jurisdiction over a defendant imposes a duty or obligation on that defendant to pay the sum for
which the judgment is given, which the registering court is bound to enforce. Registration of the Australian
judgment would give effect to the Act which encompasses the doctrines of comity and obligation.
- Counsel urged the court to follow the decision in The Aspinall Curzon Ltd v Khoo Teng Hock [1991] 2 MLJ
484 where the Malaysian High Court in Kuala Lumpur allowed the registration of a UK judgment obtained
by an English casino against the defendant. (I believe the defendant is same defendant in Las Vegas Hilton
Corp v Khoo Teng Hock Sunny.) The Malaysian court held that as the cheques issued by the defendant were
in exchange for cash and gaming chips for the purpose of gambling at a licensed casino, which was not
unlawful in England, the enforcement of the UK judgment could not be considered as being against the
public policy of Malaysia. She also referred to Canadian cases in the same vein (Auerbach v Resorts
International Hotel Inc (1991) 89 DLR (4th) 688; Boardwalk Regency Corp v Maalouf (1992) 88 DLR (4th)
612 and MGM Grand Hotel Inc v Kiani [1998] 5 WWR 118).
- The alternative argument propounded by counsel for the applicants was that until the cheque was honoured,
the applicants’ voucher handed to the respondent represented a genuine short-term loan extended to the
respondent for gambling, which is allowed under the Casino Control Manual, a regulation issued in
27
accordance with the gaming laws of Western Australia. Such genuine loans are not contrary to Singapore
public policy and are enforceable in Singapore.
- The decision
- I rejected the respondent’s arguments as having no merit whatsoever. There are several features in this case
which distinguished it from Star City Pty Ltd v Tan Hong Woon. Firstly, the applicants did not make their
claim in the Singapore courts. Their claim (quite properly) was made in the Western Australian courts in
compliance with the jurisdiction clause in the agreement. Having obtained a valid judgment outside
Singapore, the applicants intended to register it in Singapore for purposes of enforcement. Secondly, the
appellate court in Star City Pty Ltd v Tan Hong Woon specifically held ([17(b)] supra) that it is not against
the general principle of public policy in Singapore to allow recovery of money lent for the purposes of
gambling abroad, so long as the transaction is a genuine loan which is valid and enforceable according to
that foreign law.
- Counsel for the respondent had relied heavily on Star City Pty Ltd v Tan Hong Woon for her submission that
public policy (and s 5 of the CLA) disallows a Singapore court from lending a helping hand to casinos to
recover gambling debts. Otherwise, she argued, overseas casinos would be coming to Singapore to recover
gambling debts owed by Singapore gamblers. The converse argument is also true – it would equally be
against public policy for Singapore gamblers to gamble abroad with impunity safe in (and encouraged by)
the knowledge that upon their return to Singapore, they would not have to pay the debts they thereby
incurred. In this regard, it would be useful to refer to the following extract (at 693) from Auerbach v Resorts
International Hotel Inc where the Quebec Court of Appeal (per Mailhot J) echoed my sentiments:
- In my view, it would be quite contrary to public policy if Quebec became a refuge for gamblers who could
keep winnings from a gaming or betting activity yet refuse to pay debts they had previously contracted and
acknowledged by signing some cheque or credit note.
- It would be appropriate at this juncture to look at s 5 of the CLA; it states:
All contracts or agreements, whether by parol or in writing, by way of gaming or wagering shall be
null and void.
No action shall be brought or maintained in the court for recovering any sum of money or valuable
thing alleged to be won upon any wager or which has been deposited in the hands of any person to
abide the event on which any wager has been made.
- What is the actual prohibition contained in s 5? As was held by Chao J in Las Vegas Hilton Corp v Khoo
Teng Hock Sunny at [54] and [55]:
- At common law gaming is not per se illegal; neither is borrowing or lending money for gaming immoral or
unlawful at common law. Section 6 [now s 5 of the CLA] does not render gambling illegal. All that it says is
that a wagering contract is void and you cannot sue on it; neither can you sue to recover any wagering prize.
…
- The fact that if the present contract between the parties had been governed by Singapore law the contract
could be invalid or void (under s 6 of the Civil Law Act) does not mean that it, being governed by Nevada
law and valid under that law, may not be enforced in Singapore.
- The Court of Appeal in Star City Pty Ltd v Tan Hong Woon agreed with Chao J’s ruling that as the credit
facility extended by the plaintiff casino was enforceable and valid as a loan in Nevada, it fell outside the
scope of s 5(2) of the CLA altogether. The same reasoning was adopted by Choo Han Teck JC in Loh Chee
Song v Liew Yong Chian [1998] 2 SLR 641.
- The Court of Appeal in Star City Pty Ltd v Tan Hong Woon further held that s 5(2) is a procedural provision
which applies whenever foreign causes of action are being enforced in Singapore. It added (at [32]) that the
operation of s 5(2) of the CLA merely negatives the enforcement but not the validity of gaming contracts.
- Section 5 of the CLA is in pari materia to s 18 of the (UK) Gaming Act 1945. Dicey & Morris on The
Conflict of Laws (13th Ed, 2000) vol 2 at para 33R–434 states the following rule (Rule 199):
• A wagering contract which is valid by its governing law is valid in England, but no action
lies in England to recover any money won on such a contract.
• A cheque drawn on an English bank and given by way of security for money won by
gaming or betting on games or for money lent for gaming or betting, is deemed to have
been given for an illegal consideration. Hence, an action in England on the cheque will
fail, unless it has been negotiated to a holder in due course.
• But an action on the loan itself will succeed if the loan is valid by its governing law.
- The authors then set out the following principles (at para 33-435):
o An English statute which makes wagering contracts void applies only to contracts governed by English law.
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o An English statute which makes wagering contracts unenforceable, ie forbids the bringing of an action on
the contract, applies to all actions brought in an English court on wagering contracts, irrespective of the law
applicable to them.
o English law governs the validity of a negotiable instrument, eg a cheque, payable in England but issued or
negotiated by way of conditional payment of, or security for, a debt arising from a foreign wagering
contract.
- And added at paras 33-436 and 33-437:
- Section 18 of the Gaming Act 1845, makes wagering contracts null and void. It also forbids suits being
brought to recover money won on wagers. It is, therefore, a statute which deals both with the validity and
with the enforceability of such contracts. The validity of a foreign wagering contract is not affected by this
statute, but, though valid, it cannot be sued upon in an English court. Being part of the lex fori, the second,
procedural part of the section relieves the court “of the duty of adjudicating on foreign wagering contracts
which by the ordinary rules of private international law would escape invalidation by the first part.” [quoting
Lord Radcliffe’s judgment at 579 from Hill v William Hill (Park Lane) Ltd [1949] AC 530]
- … The Act of 1845 cannot be interpreted as rendering null and void wagering contracts governed by foreign
law (though it makes them unenforceable).
- The test really is to ask the question: Was the principal judgment sum a loan from the applicants to the
respondent to enable him to gamble at the Casino and which the respondent purportedly repaid with the
cheque? I am of the view the answer is an emphatic yes. In such an event, public policy does not disallow
the applicants from registering their judgment in Singapore under the Act. It would be a different
consideration altogether had the facts revealed that the respondent gambled, lost and purportedly paid the
Casino for his losses with the cheque, which was subsequently dishonoured.
STAY OF EXECUTION
- when acting for debtor, applying to court to preempt any act tt plaintiff may wish to take to avoid execution
taking place
- generally court will not allow a judgemtn creditor to not get fruits of judgement
- but application can be made
Diversey (Far East) Pte Ltd v Serba Pakar Kimia Sdn Bhd [1992] 1 MLJ 775
29
Facts:
On 6 June 1991, the defendant/judgment debtor filed a summons-in-chambers and applied for several orders, ie:
(i) that the writ of seizure and sale be stayed, or set aside or struck out;
(ii) that the defendant`s/judgment debtor`s vehicle SA 9263 C be released and that the plaintiff/judgment creditor
do pay damages; and
(iii) that costs be defendant`s/judgment debtor`s costs.
A certificate of urgency dated 29 May 1991 was filed and signed by one Ooi Kim Ean.
The grounds advanced in the application to stay or set aside or strike out the writ of seizure and sale were that:
(a) its execution was irregular, defective, wrongful and an abuse of the process of court;
(b) its execution was illegal and contravened the Exchange Control Act 1953;
(c) an application had been made earlier under O 45 r 11 for a stay of the judgment;
(d) the defendant/judgment debtor had filed an appeal to the Supreme Court; and
(e) the execution of the writ was mala fides.
Held:
(1).There was no mala fide on the plaintiff`s part as the steps taken by the plaintiff were in furtherance of a court
order. Nor was there an abuse of the process of the court when the plaintiff acted in obedience to a court order.
(2).Section 8 of the Exchange Control Act 1953 prohibits persons from making payment to a person resident
outside Malaysia. The defendant was thus prohibited by s 8 from making payment. However, even if permission
from the Controller had not been obtained, under cl 1 of Sch 4 of the Exchange Control Act 1953, the writ could
direct the sheriff who carried out the seizure to pay the proceeds of the execution into court. Before the money
could be released to the plaintiff, the requisite permission should be obtained under O 22 r 19 of the Rules of the
High Court 1980. The plaintiff`s execution of the writ was therefore not illegal.
Judgement
The summons-in-chambers was applied for under O 47 r 1 which permits the stay of execution by writ of seizure
and sale (O 47 r 1(a)) if there are special circumstances which render it inexpedient to enforce the judgment or
order. Miss Nancy Tan was correct to observe that O 2 r 1(1) was on the effect of non-compliance and that any
irregularity shall not nullify ... the judgment or order. It must, however, be added that the summons-in-chambers
did not challenge the validity of the judgment or order.
Are there sufficient grounds for the court to stay or set aside or strike out the writ of seizure and sale?
o (b) Judgment debtor (applicant) is unable to pay debt (but may do so later)
• Matter will go before Registrar who will hear both sides and determine whether application to stay
execution is successful
• Stay can also be granted for default judgments made in O14 proceedings.
• 014 rule 6 (1b) when court leaves summary judgment and def has counterclaim and there is usu stay
pending trial of claim of countercliam
• at hearing of order 14 itself
• given readily by courts
30
• When will court grant unconditional leave to defend / stay at summary trials?
Matters occurring after judgment: Stay of execution, etc. (O. 45, r. 11)
11. Without prejudice to Order 47, Rule 1, a party against whom a judgment has been given or an order made
may apply to the Court for a stay of execution of the judgment or order or other relief on the ground of matters
which have occurred since the date of the judgment or order, and the Court may by order grant such relief, and
on such terms, as it thinks fit.
• If sitn takes pace after judgment entered – can apply for stay and court may allow depending on what is the
event tt occurred.
• Difficult to obtain.
- Order 55D rule 13 (1) and order 56 rule 1(4) – general principle – appeal shall not operate as stay of
execution.
• – Appeal shall not operate as stay of execution unless the court below or high court otherwise direct.
31
• Courts will consider all merits of case and weigh plaintiffs interest with tt of defendant and particularly will
have regard to merits in the appeal. Also take heed to fact tt appeal not x succeed to orig position if succeeds
in appeal
• Powers of court - can make any order it thins fit including imposing terms for partial payment of
judgement sum
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Judgement:
The court has power to grant a stay, and this is entirely in the discretion of the court, but
the discretion must be exercised in accordance with established principles. In the present
case, the judgment was not a summary judgment or a judgment in default, but was a
judgment which was given after a full trial, in which the court even had the benefit of
submissions by eminent Queen`s Counsel on both sides. In such cases in which an
unsuccessful defendant has had a full opportunity to present his case, the court should not
deprive a successful plaintiff of the fruits of his victory pending an appeal, unless the
unsuccessful defendant can show some special circumstances to justify the granting of a
stay: Hong Leong Finance Bhd v Hon Hoi Weng & Ors [1987] 2 MLJ 377 .
An example of such special circumstances would be a situation in which it can be shown
by affidavit that, unless a stay is granted, a successful appeal could be nugatory. There
might be the likelihood of the judgment creditor becoming insolvent before the disposal
of the appeal, or the circumstances might be such that, if the judgment debt and costs are
paid, there is no reasonable probability of getting them back if the appeal succeeds.
Thus, in Wilson v Church (No 2) (1879) 12 Ch D 454 a bond holder on behalf of himself
and other bond holders claimed against a railway company that money advanced by them
to the company should be returned, instead of its being applied in the undertaking.
Judgment was given for the bond holder with costs, and it was ordered that the money
should be forthwith distributed among the bond holders. The bonds were payable to
bearer, the bond holders were very numerous and many were residing abroad. The
defendant company appealed and moved to stay proceedings pending the appeal. It was
held that there were sufficient grounds to induce the court to stay the distribution of the
fund pending the appeal.
See also Barker v Lavery (1885) 14 QBD 769 followed in Atkins v Great Western
Railway Co (1886) 2 TLR 400. In the present case, the defendant set out in his affidavit a
number of grounds of appeal which he contended had substantial merits. However, the
fact that there may be strong grounds for an appeal is not by itself a reason for granting a
stay. In Atkins v Great Western Railway Co , Lord Esher MR said in refusing a stay: ...
that there were strong grounds for an appeal was no reason, for no one ought to appeal
without strong grounds for doing so.
33