Deputy Registrar Liu Zeming:
A judgment creditor cannot issue a writ of execution to enforce a judgment without the leave of the court where more than six years have lapsed since the date of the judgment. The six-year execution period is often overlooked and can have important consequences – as it did in this case.
Background to the Application
The Plaintiff is a co-operative and has, on 8 July 2013, obtained a judgment against the Defendant in default of appearance (the “2013 Judgment”). The 2013 Judgment ordered the Defendant to pay the following to the Plaintiff: a sum of $5,608.75; interest of $1,351.00; contractual interest on the sum of $5,608.75 at 6% per annum from the date of the writ until date of full payment; and costs of $1,300.00 and disbursements of $592.64. (collectively, the “Judgment Sum”)
No formal step was taken by the Plaintiff to enforce the 2013 Judgment until 11 October 2020, when the Plaintiff attempted to file a writ of seizure and sale (the “WSS”). The filing of the WSS was rejected as more than six years had lapsed since the 2013 Judgment and leave of court to file the WSS had not been obtained.
On 17 March 2021, the Plaintiff filed Summons No. 1339/2021 (the “Application”) for leave to issue a writ of execution under O 46 r 2(1) of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) (“ROC”).
The Application was made ex-parte and first came before me for an asynchronous hearing on 18 March 2021. As I was not satisfied with the explanations for the delay provided by the Plaintiff in its affidavit in support of the Application, I gave directions for the Plaintiff to file a supplementary affidavit and brief written submissions to address my concerns, as well as to raise any other matters which the Plaintiff intended to rely on for the Application. The supplementary affidavit and written submissions were duly filed on 6 April 2021.
Having considered the factual matters and legal arguments raised, I dismissed the application on 14 April 2021. These are the grounds of my decision.
The Law
Under O 46 r 2(1)(a) of the ROC, a writ of execution to enforce a judgment or order may not be issued without leave of court where six years or more have lapsed since the date of the judgment or order. A “writ of execution” includes a writ of seizure and sale, a writ of possession and a writ of delivery: see O 46 r 1 of the ROC.
It is settled practice that leave to extend time beyond the six-year period to issue a writ of execution would not be granted unless it is “demonstrably just to do so”: see AmBank (M) Bhd v Yong Kim Yoong Raymond [2009] 2 SLR(R) 659 (“AmBank”) at [43]. Generally speaking, the lapse of six years may, and will ordinarily, in itself justify refusing the judgment creditor leave to issue the writ of execution, unless the judgment creditor can justify the granting of leave by showing that the circumstances of his or her case takes it out of the ordinary: see AmBank at [44] and [45]. Each case turns on its own facts, but the onus of proving that it is just to grant leave lies on the judgment creditor: see AmBank at [46] and [47].
The Facts
In this case, the Plaintiff obtained the 2013 Judgment on 8 July 2013. As far as it appears from the court’s record, no step was taken to issue execution on the 2013 Judgment until the unsuccessful attempt to file the WSS in October 2020 -- more than seven years since the entry of the 2013 Judgment. Thereafter, there was yet another hiatus of around five months, before the present Application was filed on 17 March 2021. No reason was given to explain why the Plaintiff took more than 5 months to make this Application. In any event, by the time the Application was filed, close to eight years had passed since the entry of the 2013 Judgment.
The question which begs to be answered, therefore, is what happened in the interim eight years?
The Plaintiff initially provided several reasons to explain why execution was not issued in the initial six-year period, namely that: the Defendant had promised to make monthly installments of $300 towards the debt, but failed to do so; the Plaintiff then referred the matter to its debt collectors, who were not successful in recovering the debt; the Plaintiff, being a Co-operative, was “at first hesitant to proceed with a Writ of Seizure and Sale as the place of execution belongs to the debtor’s parents”; the Plaintiff was “unable to proceed with Bankruptcy Proceedings as the debt was less than $10,000. Subsequently when the amount amounted to more than $10,000.00 due to the recurring interest, the threshold sum to proceed with Bankruptcy Proceedings had increased to $15,000.00”; the Plaintiff was unable to contact the Defendant on her handphone; the Defendant did not respond to “several letters” sent by the Plaintiff; and the Defendant blocked the Plaintiff on Facebook.
As the initial chronology of events provided by the Plaintiff was lacking in particulars, I requested that the Plaintiff file a supplementary affidavit to explain the steps taken to recover on the 2013 Judgment in further detail. On 6 April 2021, the Plaintiff filed a supplementary affidavit (“2nd Affidavit”). I set out below the chronology of events as it appears from the 1st and 2nd Affidavits: Pre-2013 Judgment – 2011 to 2013 The Plaintiff sent a letter of demand to the Defendant on 1 June 2009 and the Defendant promised to make monthly installment payments towards the loan, but failed to do so. The matter was then referred to debtor collectors in or around 2011, but no payment was recovered by the debt collectors. A letter of demand was issued to the Defendant on 2 August 2011 but there was no reply. Post-2013 Judgment – Between 2013 and 2014 The 2013 Judgment was sent to the Defendant on 11 July 2013, 17 April 2014 and 30 October 2014, but no response was received. On 11 October 2013, the Plaintiff’s solicitors were able to contact the Defendant on her mobile phone, and the Defendant promised to make installment payments of $300 per month. However, the payment was never made. Further attempts to contact the Defendant on her mobile phone were unsuccessful. In February 2014, the matter was referred to a different set of debt collectors, but no payment was recovered. In March 2014, the Plaintiff managed to locate the Defendant and her new address, and a copy of the 2013 Judgment was sent to the new address. In April 2014, the Plaintiff became aware through the Defendant’s Facebook posts that she was employed and had made overseas trips. However, the Plaintiff was unable to contact the Defendant through Facebook. On 19 November 2014, the Defendant made an appointment with the Plaintiff to make a payment of $300.00, but she did not turn up. The meeting was re-scheduled, but the Defendant was absent at the re-scheduled meeting as well. Post-2013 Judgment – From 2017 to 2021 On 12 September 2017, the Plaintiff sent the Defendant a further letter stating that the Plaintiff will proceed with a writ of seizure and sale if the Defendant did not revert. No response was received from the Defendant. The Plaintiff was initially reluctant to proceed with a writ of seizure and sale because “the flat was owned by the Defendant’s parents”. However, it now wishes to do so.
Application of the Law to the Facts
In my view, it is clear from the chronology of events above that this is not a case where it is “demonstrably just” to grant leave for the Plaintiff to issue writ of execution after six years. If there is anything which takes this case “out of the ordinary”, it is the extraordinary lack of effort on the part of the Plaintiff in taking steps to enforce the 2013 Judgment. I set out below some of the main reasons which have led me to this conclusion.
First, apart from the initial steps taken by the Plaintiff in 2013 and 2014 to recover on the 2013 Judgment, there appears to have been total inaction in the period between 2015 to late 2017 (when a letter of demand was issued), and then from early 2018 to late 2020 (when the Plaintiff attempted to file the WSS). The Plaintiff did not attempt to explain the delay...
