Now that you have received a Court judgement or order in your favour, what steps can you take next to ensure that this “paper tiger” can be unleased in order to recover your judgement sum?
The most common ways of recovery would be as follows:
Companies who fail to pay a judgement sum can be subjected to winding-up provided the amount owed is more than RM50,000. A company that is wound-up would have all its affairs managed by a liquidated appointed to look into the affairs of the company, and to distribute any available assets.
Individuals can also be subject to insolvency proceedings and be made bankrupt. Once bankrupt, the person would not be able to own assets, travel overseas without leave, be a director of a company or carry on any business without permission from the Director General of Insolvency.
Tip: It must be noted that even adjudication decisions, although interim in nature, can also lead to winding-up proceedings.
If the judgement creditor is aware that there is another party who owes money to the judgement debtor, then the creditor may commence garnishee proceedings to garnish the monies owed. This includes monies held in bank accounts of the judgement debtor.
Tip: This procedure is particularly useful if you have knowledge of the judgement debtor’s bank account or other information showing a third party owing monies to the judgement debtor.
Writ of Seizure and Sale
By this method, the judgement creditor can request the sheriff or bailiff to seize the property of the judgement debtor and sell the same by auction to satisfy the debt.
Tip: This approach is useful when you have information of the debtor’s property or where the debtor’s bank account does not have enough funds to satisfy the debt.
Judgement Debtor Summons
A judgement debtor summons is a summons issued in order to ascertain the assets of the debtor. The debtor (or its representative) would be required to attend Court to furnish particulars of its assets held.
Tip: This approach is useful when you have no knowledge of the assets held by the debtor.
You may apply for a charging order of the debtor holds shares and bonds of other companies.
Writ of Possession
Typically employed in a landlord-tenant situation, a writ of possession allows the sheriff or bailiff to enter into the property and take possession of the same.
Writ of delivery
A writ of delivery can be used to compel a judgement debtor to deliver up any goods in its possession.
Last but not least, a judgement debtor can be held to be in contempt of court and be committed to civil prison. However, this would be a case of last resort and Courts would only resort to this measure if the debtor’s conduct is contumelious. A mere inability to pay would not ordinarily lead to such drastic measures.
A word of caution
All judgements and orders of Court must be enforced, preferably within 6 years. After 6 years, the judgement or order can still be enforced with the leave of Court. However, after 12 years, the judgement or order will no longer be permitted to be enforced.
Also, the mere fact that you seek to enforce the judgement does not guarantee that you will be able to recover the judgement sum, either in full or in part. However, needless to say, if you fail to enforce your judgement, then there is almost a 100% certainty that you will not recover anything.
If you have any questions, don’t hesitate to contact:
Kevin Ngu ([email protected])