Enforcing a judgment

Order for oral examination

If you are unsure of the debtor’s financial situation and which enforcement option to choose you can apply for an ‘order for oral examination’.

This allows a creditor’s practitioner to ask questions in the presence of a court registrar about the debtor’s financial situation and determine the best way of enforcing the debt.

Application to pay debt by instalments

If you cannot afford to pay the amount you owe and agreement cannot be reached with the creditor, you may apply to the Court to pay the debt and interest by instalments.

To do this, an application (form 61A) must be provided before the Court and it should contain:

• the total sum outstanding
• the amount to be paid by instalments
• when the instalments are to begin
• grounds for the application
• the address for both the judgment creditor and judgment debtor
• a sworn Affidavit of Financial Circumstances (form 72C)
• a sworn Affidavit of Service as the other party must be served with the application before the Court can accept it.

The registrar will set a date for the application to be heard. The parties do not need to attend. The registrar will review the papers submitted by the debtor and make a decision regarding the application. All parties will then be notified.

The registrar may grant the application or refuse the application.

Refusal of the application is usually due to:

• the instalment amount not covering the penalty interest which is accruing on the debt
• the applicant has other assets which could be sold to pay off the debt
• the offer is unrealistic and the debt will take too long to pay off.

Objection hearing

Either party may lodge an objection to the Registrar's decision within 14 days of receiving notification of the decision. The objection application is heard by a judge or a judicial registrar.

Warrants

There are three types of warrants that can be issued and forwarded to the sheriff for execution:

1. Warrant of seizure and sale – to seize and sell property (order 69)
2. Warrant of possession – to enforce the judgment by taking possession of the land subject to the order (order 70)
3. Warrant of delivery – to take possession of the goods or their value (order 66).

Attachment of debt (Garnishee Order)

A creditor can apply for a Garnishee Order where the debtor is owed money (not wages) by another person (garnishee). It allows the debt owed to be paid directly to the creditor.

Attachment of Earnings Order

This is an application to the Court that orders the debtor's employer to deduct instalments from their salary.

Charging Order

This is an enforcement application by the creditor that secures the payment of a debt through securities held by the debtor. In this respect, securities mean:

• any stock, including shares, bond, note or other security
• any dividend or interest payable on stock.

Before issuing a Charging Summons a judgment creditor must make an application to the Court to issue, file and serve the summons.