What is a Writ of Seizure & Sale (WSS)?
A Writ of Seizure & Sale (WSS) is a direction to the Officers of the Court (Bailiff) to seize the property of the judgment debtor (JD) within Malaysia to pay his judgment debt, interest and costs of the execution to the judgment creditor (JC). The seized property may be sold by public auction to recover the judgment debt. WSS is one of the ways to enforce a money judgment under O.45, r.1 of the Rules of Court 2012 (ROC 2012).
The Process of WSS
Under O.45, r.12(1) ROC 2012, WSS can be applied to the High Court in Form 84 or to the Subordinate Court in Form 84A for movable property. Under O.46, r.4(2), it must accompany by a praecipe signed by the solicitor of the JC or if the JC is acting for himself by him in Form 89. The JC also needs to produce the judgment or order on which the writ is to be issued and the leave of Court if it is required.
The WSS application needs to be filed to the Court which granted the judgment. If the JD’s property is situated in another district, the Court will transfer the writ to the Court which has the jurisdiction over the district where the property is situated. For example, Ahmad had obtained a judgment against Steven from Shah Alam Court. Ahmad wants to enforce his judgment via WSS to seize Steven’s movable property in Steven’s house at Klang. Ahmad would need to file his WSS application to Shah Alam Court. Shah Alam Court will then transfer the WSS to Klang Court. The deposit will also be collected by Klang Court and the writ will be executed by the bailiff at Klang Court.
Under O.46, r.2(1), leave of court is necessary to issue the writ when six years of more have lapsed since the date of the judgment, where any change has taken place in the parties entitled to the judgment (JC), when the judgment is against the assets of a deceased person coming to the hands of his executors or administrators, where under the judgment any person is entitled to relief subject to fulfilment of any condition which is alleged has been fulfilled and where any movable property sought to be seized is in the hands of a receiver appointed by the Court. Under O.46, r.3, an application for a leave of Court can be made by a notice of application in Form 88 supported by an affidavit. Once the leave is granted, the JC must apply for the writ to be issued within one year after the date of the order granting such leave (O.46, r.2(3)).
If all documents are in order, an officer of the Registry will seal the writ of execution and it is deemed to be issued. Under O.46, r.6(1), the WSS is valid for twelve (12) months beginning of the date of issue. Eg. A writ of execution issued on 9 September 2020 will be valid until 8 September 2021 and expires on 9 September 2021. Under O.46, r.6(2), if the writ is not wholly executed (before the sale of all seized property), an application can be made to the Court at any time to extend the validity of the writ for another period of twelve (12) months from the last day which the writ is valid. Thus, the validity of the writ in the example above can be further extended 12 months from 8 September 2021 to 7 September 2022. The application needs to be filed to the Court which executes the WSS.
After the WSS is issued, the Court will then inform the execution date and request for a sum of money to be deposit in the Registry and request payment for Court fees (O.46, r.11(1)). The officer in the Registry will issue a receipt for each money deposited and other fees for the execution (O.46, r.13(1)). The cost of executing the WSS will be deducted from the money deposit in the Registry. The deposit needs to be paid before the WSS can be executed.
The JC’s solicitor will then need to appoint a security guard from one of the Security Companies approved by the Court. Under O.46, r.15, the WSS may be executed between 9am and 4pm unless the bailiff orders. In practice, the bailiff may execute the WSS if the Court gave direction to execute the writ after office hours. On the execution date, JC’s solicitor or his representative, a security guard and the Court bailiff will go to the JD’s premise to execute the WSS.
WSS execution is deemed to be successful if the JD is at the premise and allows the WSS to be executed. The bailiff will proceed to seize the movable property like tables, chairs, sofa, air-con, fan, fridge, etc in the premise. Under O.46, r.16, the bailiff shall give the JD a notice of seizure in Form 91. The bailiff also will prepare a list of all movable property seized together with the estimate value of the movable property. The public auction date which is 14 days after the execution date will be set and a notice in Form 92 will be posted on the notice board of the Registry and so far as practicable at the premise seven days before the sale. (O.46, r.23). During the 14 days pending the public auction, the JC has the option of employing the security guard to guard the seized property. Under O.46 r.22, the public auction will be conducted by the bailiff. If the seized property is estimated by the bailiff to exceed RM 10,000, the public auction will be conducted by a licensed auctioneer (O.46, r.24(1)).
On the auction day, the bailiff, JC’s solicitor and the security guard will go the auction location, usually the JD’s premise to auction off the property. The property will be sold to the highest bidder present on that day. However, if there is no bidder present, the bailiff can fix a second auction date. The proceed of the auction will be used to set off the JD’s judgment debt.
If at the first execution is unsuccessful, for instance there is no one at the premise or that the person at the premise did not cooperate, the bailiff usually will set another date for the second execution. If the second execution is also unsuccessful, JC may apply to the Court for an order to execute the WSS using reasonable force. The application needs to be filed to the Court which executes the WSS in the same manner as the application to extend the validity of the WSS. It is an application under O.92 r.4 and it is solely the Court discretion whether to grant the order or not. Thus, the JC would need to show sufficient prove that the premise belongs to the JD or that the JD did not cooperate with the bailiff during execution to avoid executing on the wrong property. Once the order is granted, the JC could request the bailiff to set an execution date. On the execution day, the JC would need to hire a locksmith to enter into the JD’s property.
At any point of time, the JC can withdraw the WSS if the JC did not intend to continue with the execution. Once the JC request the bailiff to withdraw, the WSS is deemed to be abandoned. Under O. 47, r.5(2), a WSS which has been withdrawn shall not be reissued but the JC may apply for a fresh WSS to be issued again. Once the WSS has been wholly executed or the JC had withdrawn it, the court will release the balance of money remaining back to the JC after deducting the court’s expenses to execute the WSS (O.46, r.13(2)). If the property were successfully sold by auction, the money will be refunded to the JC (O.46, r.13(3)). Under O.46, r.7, JC can deduct the commission, fees and expenses using the sum recovered from the JD. The JC also can claim the cost of the WSS, whether executed or unexecuted or unproductive against the JD.
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