Writ of Execution

A writ of execution is an order made by the court and a method to enforce a judgment. The order against goods binds the property in the goods as from the time the writ is delivered to the sheriff. The sheriff is ordered to seize personal property of the debtor to sell at auction and the money derived from selling the property is used to pay the debt to the creditor. Land owned by the debtor cannot be seized if the order is not specifically made against land.
If there are multiple writs for the levy of property against the same debtor, they are to be prioritised and enforced in the order that they are received by the sheriff.

 

1. Application

 

A party that seeks a writ of execution against a debtor must apply for such an order by way of notice of motion. Such a notice of motion is to be dealt with in the absence of the parties and it does not need to be served on the judgment debtor. When applying for a writ of execution there must be an indication of the extent to which the debt has been satisfied under any writ of execution, garnishee order or charging order issued by the court.
When applying for a writ of execution an affidavit must be filed in support of the application, unless the court orders otherwise. The affidavit must have been sworn not more than 14 days before the date of filing.

1.1 Writ for the possession of land

If the application is in relation to a writ for the possession of land, the affidavit must identify any persons who were in occupation of the land at the time that the originating process was filed, or at the time the amendment was made if the claim for possession arises from an amendment to the originating process. The application must also state that the person’s occupation of the land is not to be disturbed, that the person is no longer in occupation of the land, or that the person has been served with a notice that the time has elapsed to apply to the court to be joined as a defendant. The source of the deponents knowledge of the matters stated in the affidavit in relation to the occupation of the land must also be included in the application. A statement whether costs are claimed, if the costs are claimable by law and the amount must also be stated in the application.
If judgment has been entered for the payment of money in addition to possession of the land the following particulars need to be included in the application:
• the amount of the judgment debt,
• the amount of interest accruing on the judgment debt to date,
• any payments made by or on behalf of the judgment debtor after judgment was entered,
• the current amount owing taking into account the matters referred to in subparagraphs (i), (ii) and (iii), or
If judgment has been entered only for possession of the land the following particulars must be included in the application:
• the amount owing following the default,
• any payments made to date to reduce the amount owing,
• the current amount owing taking into account any such payments.

1.2 Writ for the delivery of goods

In cases when an application is made for writ for the delivery of goods, there has to be an affidavit in support which states the following:
• which goods have not been delivered to the plaintiff since the time the judgment was given;
• particulars of any payments that the defendant has made to the plaintiff in respect of the goods or state that no such payment has been made since the date of the judgment; and
• the address at which the goods are alleged to be located.

1.3 Writ for the levy of property

When applying for a writ for the levy of property, an affidavit must be made in support of the application. The affidavit must include the following:
• the amount payable, any costs and interest payable in relation to the judgment at the time of the swearing of the affidavit;
• the address at which the property may be located which belongs to the debtor; and
• a statement if the judgment was entered as a result of the filing of a cost assessor’s certificate and a statement to the effect that the determination set out in the certificate:
o is not subject to any suspension under section 377 (1) of the Legal Profession Act 2004 that has not been ended under section 377 (2) of that Act, and
o is not subject to any suspension under section 386 (1) of the Legal Profession Act 2004 that has not been ended under section 386 (2) of that Act.
If there has been an instalment order that has ceased to have effect, an application for writ of execution may not be granted unless the creditor has filed an affidavit in relation to the debtor’s failure to comply with the instalment order made by the court.

 

2. Order to sell property

 

If the property is of a greater value than the amount outstanding under the judgement, the sheriff may not sell more of the property than what is sufficient to satisfy the debt. The sheriff must sell the property in an order that is best for satisfying the debt without unnecessary expense, in such an order as the debtor may direct and in an order to minimise hardship to the debtor or any other person. Land does not have to be sold before other property unless the debtor makes such a request or the sheriff believes that such an order minimises hardship to the debtor or any other person.

2.1 Distribution of proceeds

After the property has been sold at auction by the sheriff the proceeds must be distributed in the following order:
1. to the sheriff for covering of the sheriff’s fees and expenses in executing the writ;
2. to the creditor in order to satisfy the debt; and
3. to the debtor in relation to the amount remaining.
If the sheriff receives writs for the levy of property in relation to more than one judgment creditor, the creditors are to be paid in the order in which the writs were received by the sheriff.

Limits to writ of execution

A writ of execution may not be executed on Christmas Day, Good Friday or any other day when the court registries are not open.
An order for writ of execution has effect for 12 months after which the court may renew the order.

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