How to claim against moveable properties seized for enforcement
One of the most common methods to enforce a judgment is the writ of seizure and sale of moveable properties. This is where the Court sheriff or bailiff is empowered to go to a judgment debtor’s property or land, enter (with or without force) and seize moveable properties (e.g. in residential premises, these would be things such as air conditioning units, kitchen appliances, furniture and television sets. In business premises, it could be things like forklifts, kitchen equipment, computers and office furniture). These properties are intended to be sold at an auction in order to satisfy the judgment debt.
But what happens if the moveable properties seized do not belong to the judgment debtor but to a third party, for example a tenant or a bank? The third party would have to seek relief by way of a process known as “interpleader” proceedings.
How does it work?
- Notice of Claim
The third party will have to give notice of his claim over the properties seized to the Court sheriff or bailiff who was charged with the execution of the process. The notice must specify the exact items in which the third-party claims belongs to him / her and the grounds of the claim. The third party’s address must also be set out in the form.
- Notice to the Judgment Creditor
Upon the Court sheriff or bailiff’s receipt of the notice of claim, the sheriff or bailiff in turn has to give notice informing the judgment creditor of the claim being made against the properties seized. A copy of the notice of claim and any accompanying documents would normally also be provided to the judgment debtor for reference. This notice gives the judgment creditor 4 days to consider whether to admit or dispute the claim made.
- Response by Judgment Creditor
If the judgment creditor admits the claim, the judgment creditor will only be liable for the fees and expenses incurred by the Court sheriff or bailiff before the receipt of that notice (of claim). Admitting to the claim is also a request for the Court sheriff or bailiff to withdraw from possession the relevant moveable properties.
If however the judgment creditor disputes the claim (whether because the bona fide of the claim is challenged), the Court sheriff or bailiff will then make an application to Court for the Court to determine the matter. The application will set out briefly the claim and the judgment creditor’s dispute and state that the Court sheriff or bailiff claims no interest towards the properties.
- Service of the Sheriff’s or Bailiff’s Application
The application is then fixed before the Court and is usually, unless directed to the contrary by the Court, served on those interested, namely the contending parties.
- Court Hearing
At such a hearing, the contending parties (that is the judgment creditor and the third party) are “claimants”. In hearing the application, the Court may direct that one be the plaintiff and one be the defendant as appropriate and where the court so directs, the burden of proof normally lies with the plaintiff. The Court may also determine the matter summarily.
Typically, the judgment creditor will have to satisfy the Court that the properties were properly identified as belonging to the judgment debtor whereas the party making the claim will have to show evidence and / or proof that the properties seized belongs to him / her. For example, if the party asserting ownership is a tenant, such evidence may include the tenancy agreement and receipts of purchase of the relevant moveable properties.
Other types of claimant are banks (when the property is on hire purchase arrangements), other service providers (when the judgment debtor is only leasing or renting the property), purchasers (when the property has already been sold to a third party and title over the property has already been transferred), or trust beneficiaries (the judgment debtor is merely holding the property on trust for a beneficiary).
If the issues are complex, the Court can direct for a trial.
A decision of the Court whether in allowing or dismissing an interpleader application has the usual appeal avenue.
Judgment creditors should therefore be mindful when executing a judgment via writ of seizure and sale; not everything on the judgment debtor’s premises may actually belong to the judgment debtor. In light of the various possibilities above, there is always a chance that seized property may be subject to challenge by a third party who is asserting ownership over that property.
Th’ng Yan Nie is an associate in the dispute resolution practice group at Donovan & Ho. She has a wide range of experience in litigation matters including contractual and commercial disputes, compulsory land acquisition, debt recovery and strata and property management issues.
Donovan & Ho is a law firm in Kuala Lumpur, Malaysia. Our practice areas include employment law, dispute resolution (litigation and arbitration), corporate and tax advisory, and real estate/conveyancing. Have a query? Contact us.