Articles

If you have been given a judgment by the court in your favour the court will usually include in the order what you are owed by the opposing side and will usually say how much time they have to pay off that debt or comply with the order. Even if the court may not specify the time within which the losing party (the debtor) is to pay it is expected that he/she is to pay or obey the order within a reasonable time. If the debtor does not obey the order within the time set by the court or within a reasonable time you may, as the creditor, apply to the court to start enforcement proceedings.

 

The Rule for dealing with Enforcement of Judgments falls under Rule 14 of the Civil Procedure Rules (CPR)

 

Enforcement follows 3 main steps:

 

1. After a judgment, if the court has not specified the time within which to pay, the court may set the case down for an Enforcement Conferenceimmediately after handing down the judgment. If the court does not do this, either you or your lawyer may apply to the court by way of application to set the matter down for an enforcement conference. This application will usually be heard by the Master of the court without a hearing and as creditor, you will be notified by way of Notice of Hearing from the court. The debtor will be served with a Summons to appear on the date given and told to come to court will all necessary documents like salary slips, bank account statements, utility bills, mortgage or rent receipts and any other documents deemed relevant as evidence to show the court the earning and expenses of the debtor. The Summons will always contain a warning to the debtor that if he/she does not attend court on the day, the court has the power to issue an arrest warrant to compel them to come to court. At the Enforcement Conference the creditor or his lawyer will be allowed to cross-examine the debtor as to his ability to be able to repay the debt. The court may also question the debtor.

 

2. If the court finds the debtor has the ability to pay in full or in instalments the court will make the appropriate order and will follow the case through until payment is complete or there has been full compliance with the court’s judgment. This is called an Enforcement Order. If the court finds that the debtor cannot in fact pay it will not make any order to force payment but the creditor will always have the right to return to court whenever the debtor does have the ability to ask the court for an order for payment.

 

3. If the court made an order to pay in full or by instalments and the debtor has not complied at all or only partially, the creditor may apply to the court for an Enforcement Warrant.

 

An Enforcement Warrant allows the creditor, through the court to gain access to the funds and/or assets of the debtor so that the creditor can be paid.

 

Types of Warrants

The main types of warrants are:

• Seizure and Sale of property
• Redirection of earnings
• Redirection of debts

 

Other types of Warrants include :

• Eviction
• Possession of land
• Charging orders against annuities, shares, stocks, bonds, etc
• Delivery of goods

 

Applying for an Enforcement Warrant

All Forms related to Enforcement Proceedings can be found under Schedule 3 to the Civil Procedure Rules 2002. Application for an Enforcement Warrant must be filed in Form 25.

 

All other types of Warrants are to be filed in one of the following forms:

• Enforcement Warrant for a money order – Form 22
• Enforcement Warrant for a non-money order – Form 23
• Notice about Redirection of Earnings – Form 26

 

The creditor is not required to give notice to the debtor that he is applying for a Warrant. The creditor must file his application under Rule 14.12 of the CPR and it must include:

• An Application in Form 25,
• A copy of the Enforcement Order made either by the Judge or the Master
• 2 copies of the type of Warrant
• A sworn statement at least 2 business days before filing setting out:
  • The date of the enforcement order
  • The amount payable under the order
  • The date and amount of any payment made under the order
  • The costs of previous enforcement proceedings
  • The interest due at the date of the statement
  • Any other details needed to work out the amount payable under the enforcement order at the date of the statement and how the amount is worked out
  • The daily amount of future interest
  • Any other information needed for the warrant

 

If the Warrant is to seize and sell land or a vehicle then the court will also require you to submit a recent copy of the land register and a valuation of the property if available. If a vehicle then you will need to submit proof of ownership of vehicle by the debtor such as an owner registration certificate.

 

It is also useful to provide any information you may have to contact the debtor such as telephone, home address to help the Sheriff when it comes time to execute.

 

 

After You Apply

The court will consider your application. If your application is not granted an order will be made with the reason for the refusal and you will be notified. Depending on the reason for the refusal you may reapply for the Warrant.

 

The court can either grant the Warrant without a hearing or it may schedule a Conference asking the debtor and the creditor to both attend before a decision is made as to whether to grant the Warrant or not.

 

Time Frames

You will have 6 years from the date of your judgment to apply for a Warrant to enforce that judgment. After that time, if you wish to enforce, you will have to apply to the court and ask for permission.

 

If the Warrant is granted it will be signed by the Master or Judge and addressed to the Sheriff of the Court to execute. The Sheriff will usually have 1 year to execute a Warrant for land and if for a vehicle or other movable asset it will be about 6 months.

 

A Warrant for possession of land or to evict a person or persons will usually be between 3 months to 6 months unless the court has reason to shorten or lengthen the time.

 

An expired Warrant can always be renewed at the request of the creditor by application.

 

Filing Fees and Sheriff Fees

It will cost you VT3,000 to file with the court an Application for an Enforcement Order or Enforcement Warrant. This is separate for whatever legal fees you will have to pay your lawyer if you have one.

 

For any sale which the Sheriff is to do, 10% of the sale price will be deducted and paid to the court as the Sheriff’s administrative fee. This fee does not go to the Sheriff personally but is paid to the court.

 

In another article we will look at how the Sheriff goes about executing a warrant and the options available to you if you are a debtor.

 

 

DISCLAIMER – This is a legal column to provide basic information on the law and court procedure. It is not to be used as a substitute for legal advice but to be used only as a starting point in understanding what you might need and what you might need to do.     

 

If you have any questions or require clarification on the above please contact the writers at vanuatulaw@gmail.comor contact us at website www.pawthelaw.info