10 May The Road to Debt Recovery – Enforcement of a Judgment Debt
The road to debt recovery might be for some creditors, a bumpy one. If you have instituted legal proceedings against the debtor and successfully obtained a Court order in your favour, you may think that your legal journey has come to end. For some it has, when the debtor pursuant to the Court order pays to the judgment creditor (the successful party in the litigation), the sum owed in addition to any applicable interest and costs. However, what happens if despite this Court order, the judgment debtor and losing party still does not budge? In these circumstances, the judgment creditor can look to enforce a judgment to realise payment of any damages or costs which have been awarded.
When enforcement can be triggered
Generally speaking, the Court order may specify a time-period for which the debtor has to pay. The judgment creditor should ensure that the judgment is served on the judgment debtor without delay. If payment is not made within the time specified in the judgment, then the judgment creditor can seek to enforce the judgment. If the judgment provides for payment by instalments, then a missed instalment can also be a prompt to enforcement action.
Stay of Execution
It should be noted that the judgment debtor can ask the court to “stay” the execution of the judgment if they choose to appeal the judgment. If such a stay is granted, then the judgment creditor would not be able to enforce the judgment pending the outcome of the judgment debtor’s appeal. However, judgment debtors should note that enforcement of a judgment is not automatically stayed when a judgment is appealed. A separate legal application to the Court will become necessary, which will be determined by the Court, if the judgment debtor wishes for a stay of execution pending an Appeal.
Writ of Fieri Facias
If there is no issue of appeal (and stay of execution), there are many different ways of enforcing a judgment through the Courts in Trinidad and Tobago and the best method may often depend on the type of assets the judgment debtor has to enforce against. If for example, the judgment debtor is known to own considerable personal chattels, for example, machinery or cars, a writ for levy of property/seizure and sale order or writ of fieri facias may be appropriate. With this method of enforcement, the judgment creditor will need to apply to the court for a writ which authorises a bailiff to seize and sell goods of a sufficient value to satisfy the judgment debt. In some circumstances, the unfortunate threat of this action prompts the judgment debtor to liquidate the debt owed to avoid the sale of their goods.
Another common method of enforcement is that of an attachment order or a garnishee order. If a judgment creditor knows that the judgment debtor earns a regular income or has cash assets in a financial institution, a garnishee order may be more effective in enforcing a judgment debt. This method allows a judgment creditor to recover the judgment debt from a third party who holds funds for the judgment debtor, for example a bank, where the judgment debtor holds an account.
Application for Oral Examination – in aid of Enforcement
If the judgment creditor is uncertain as to what assets the judgment debtor holds, he can compel the judgment debtor to attend Court to give evidence on his financial status, assets and liabilities. This Application is referred to an application for oral examination in aid of enforcement.
Other methods of enforcement can include a charging order – by this method, a creditor can obtain a charge on the debtor’s holding of Government stock, funds or annuities and the stocks and shares of any company. However, the judgment creditor will also rank behind prior charge holders on the property (e.g. any mortgagee of the property) so this method may not yield in full satisfaction of a judgment debt.
If a judgment debtor is a company, under the provisions of the Companies Act, a creditor may apply to wind up a company which is unable to pay its debts. Generally, the directors of a company are not personally liable for the debts of the company. However, the Court, on hearing a petition to wind up a company, may declare that a director, whether past or present, is personally responsible for all or any of the debts or other liabilities of the company if it appears to the Court that the business of the company has been carried on (i) with intent to defraud creditors of the company; (ii) with reckless disregard of the company’s obligations to pay its debts; or (iii) with reckless disregard of the sufficiency of the company’s assets to satisfy its debts and liabilities.
The above methods are not exhaustive, and much would depend on the debtor’s financial position. It is generally advisable however, to embark upon enforcement action without too much delay to minimise the risk of dissipation of the debtor’s assets. In conclusion, obtaining a judgment in your favour is noteworthy milestone but it may not be the end of the road. Fortunately, there are legal processes that you can employ to recover a judgment debt.
Disclaimer: This Document Provides General Guidance Only And Nothing In This Document Constitutes Legal Advice. Should You Require Specific Assistance, Please Contact Your Attorney-At-Law.
This Article was authored by Cherie Gopie, Partner at M. Hamel-Smith & Co. can be reached at email@example.com.