Levy of property is the first of the means listed in Order 13 Rule 2(1) for enforcing a money judgment under the National Court Rules 1983.
Rule 23
A person requiring the issue of a writ of execution shall —
(a) produce to the Registrar a form of the writ; and
(b) file a copy of the writ; and
(c) where the writ is to enforce a judgement for the payment of money — file an affidavit, sworn not more than 14 days before the requirement, containing and verifying a statement of —
(i) the date of taking effect of the judgement; (ii) the amount of money originally payable; (iii) the date and amount of each payment made on account; (iv) the interest (if any) due on the date of swearing; (v) such other particulars as are necessary to calculate the amount payable; and (vi) the amount payable under the judgement on the date of swearing.
An affidavit sworn more than 14 days before the writ is required does not comply. Because the amount payable changes as interest accrues and payments are made, the Rules insist on a current figure.
Note the date in sub-paragraph (i): the date of taking effect of the judgement, which under Order 12 Rule 3 is the date of the direction where the Court directed judgment, and the date of entry where it was entered otherwise.
Interest under Order 12 Rule 6 is payable at 8% yearly on so much only of the money as is from time to time unpaid — so each payment received must be credited, which is why sub-paragraph (iii) requires the date and amount of each.
What must already have happened
- Entry. Under Order 12 Rule 18(1)(c), an order shall be entered where it is to be enforced, and on entry the Registrar seals the minute.
- Service of the minute. Under Order 12 Rule 4(2) and (3), the time to comply with a money judgment is 14 days after service of a minute, unless the Court orders otherwise.
- Expiry of that period. Only then is the debtor in default.
Rule 18
A writ of execution shall not be issued without the leave of the Court where —
(a) 10 years or more have elapsed since the date of taking effect of the judgement;
(b) any change has taken place, whether by assignment, death or otherwise, in the persons entitled or liable to execution;
(c) the judgement is against the assets of a deceased person coming to the hands of the executor or administrator after the judgment took effect, and the writ is against such assets;
(d) under the judgement a person is entitled subject to fulfilment of a condition;
(e) the writ is against property in the hands of a receiver appointed by the Court or of a sequestrator; or
(f) the writ is in aid of another writ of execution.
(2) This does not affect any statutory provision requiring leave.
A person may, unless the Court otherwise orders, move for leave without filing or serving notice of the motion.
The motion must be supported by evidence showing — where the judgment is for money, the amount due on the date of the motion; where ten years have elapsed, the reasons for the delay; where there has been a change of persons, the change; where paragraphs (c) or (d) apply, that a demand to satisfy the judgment has been made and not satisfied; that the applicant is entitled to proceed to execution; and that the person against whom execution is sought is liable to execution.
A judgment does not expire after ten years — but from that point execution requires leave, and the applicant must explain the reasons for the delay. A judgment creditor who intends to enforce should not wait.
Paragraph (b) catches the common case of a judgment creditor who has died or assigned the debt, and the case of a judgment debtor who has died. See death of a party.
Rule 19 — a stricter rule
(1) A writ of sequestration shall not be issued without the leave of the Court.
(2) The applicant must file notice of the motion and serve the notice and any affidavit in support personally on the person whose property is sought to be sequestrated.
(3) The Court may dispense with service.
Rule 22 — separate execution
Where there is a judgement for the payment of money and for the payment of costs, and when the money (other than costs) becomes payable the costs have not become payable — because they have not been taxed or for any other reason — a person entitled to enforce the judgement may —
(c) have execution to enforce payment of the money; and
(d) when the costs become payable, have execution separately to enforce payment of the costs.
Taxation of costs under Order 22 can take months. Rule 22 means a judgment creditor may enforce the judgment sum immediately and come back for the costs later, with a second execution.
Rule 21
The Court may, on terms, stay execution of a judgement or order.
Rule 21 is short and wide. It is the provision a judgment debtor invokes where enforcement should be halted — pending an application to set aside the judgment, pending an appeal, or where instalments are proposed.
Nothing happens automatically. As with a stay pending appeal, execution continues until the Court orders otherwise, so the application must be made promptly and will usually be granted only on terms — commonly payment into Court or security.
Note also Order 12 Rule 39(2), under which the Court may stay execution on a summary judgment until determination of a cross-claim by the party against whom judgment was directed.
On what property a writ of levy reaches, and what is protected, see what property can be seized; on the Sheriff’s role, the Sheriff; and where a stranger claims the goods seized, sheriff’s interpleader.
Sources
- National Court Rules 1983 — O 12 rr 3, 4, 6, 18, 21, 39; O 13 rr 2, 17–23; O 14 Divs 6, 7; O 22
Before relying on anything here, read the current text of the National Court Rules 1983 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.