3. How can the Bailiff's Office assist me to recover my debt/compensation/premises from the judgment debtor/defendant?
Bailiffs can execute the orders and judgments of a court or tribunal.
For example, if the judgment debtor refuses to pay the money, or the person who has been ordered to vacate premises fails to do so, application can be made to the Bailiff's Office to take appropriate steps to try to recover the debt or get back the premises for you (as the applicant). Bailiffs are authorised to:
- seize goods and chattels of the debtor/defendant at a value equivalent to the judgment debts plus the incidental expenses of the execution; and
- recover lands/premises.
However, it is worth bearing the following points in mind:
- Judgments cannot always be enforced, for example, if the judgment debtor/defendant does not have any money or assets (or that person cannot be located).
- Bailiffs only execute court orders and judgments upon the instructions given by you (as the applicant). It is not the job of the Bailiff's Office to trace the location of the debtors or to ensure that the sum owed to you is recovered.
- There is no guarantee that the bailiffs will succeed in getting any sum or seizing any goods of value. In such cases, you still have to bear the costs of execution incurred by the bailiffs.
- You must be very careful in the instructions you give to the bailiffs. If goods and chattels are seized from the wrong persons or wrong locations, then any claim for wrongful seizure will be made against you and not the bailiffs. You should, if possible, accompany the bailiffs when they go to execute the writ. This enables you to give any further instructions on the spot.
Ways to execute a court order/judgment by the bailiffs
You can apply for a writ of execution by the bailiffs depending on the nature of your case. The three major options are: (i) writ of fieri facias; (ii) warrant of distress and (iii) writ of possession.
(i) Writ of fieri facias
This writ is useful when you cannot get the compensation/judgment debt from the defendant/debtor. If there are sufficient goods and chattels on the defendant/debtor's premises to justify a seizure, the bailiff will seize them up to the amount endorsed on the writ, plus the estimated costs of the execution. You have to give an undertaking to the bailiff to pay the necessary costs involved in effecting a seizure.
If the action is successful, the bailiff will take an inventory of all items seized. One copy will be passed to the security guard responsible for keeping watch over the items to ensure that they will not be tampered with or removed unlawfully.
The defendant has a period of 5 working days (following the date of seizure) to settle the debt plus the estimated costs incurred for the execution. If the defendant does not pay the total amount due, then the seized items will be sold on the first working day after this period by public auction. The proceeds at auction will then be used to settle the money due to you after defraying the necessary execution charges. (Note: If you think the seized goods may not be sold at the best price via public auction, you can apply to the court for permission to sell the goods in another way.)
(ii) Warrant of distress
Distress means the seizure and sale of chattels/goods found in a rented property to satisfy the arrears of rent . It is mostly used in cases in which a tenant is still operating a business at the rented property. This warrant may be obtained by a winning party who has filed a distraint case in the District Court. The procedure of execution is similar to that for the writ of fieri facias.
If the bailiff cannot enter the target premises, you can apply for a break open order to break into the premises after the bailiff has made two unsuccessful attempts to enter at different times.
(iii) Writ of possession
It is commonly used for regaining possession of premises where the debtor fails to pay rent or make mortgage repayment to the landlord/mortgagee. It can also be used for taking over premises which are subject to a charging order while the property owner (i.e. the debtor) fails to repay.
If the bailiff cannot enter the target premises, there is no need for you to further apply for a break open order. A locksmith will be in attendance (when the bailiff goes to that premises for the third time) in order to break into the premises.
Costs for the bailiffs
You have to pay:
- a filing fee for the writ of execution;
- a deposit for the bailiff's travelling expenses ($400 for the Hong Kong and Kowloon areas or $800 for the New Territories); and
- a deposit for the cost of a maximum of 8 days' services by the security guard (note).
(Note: The Bailiff's Office can arrange a private security guard service on your behalf. The security guard will accompany the Bailiff to carry out the execution and safeguard the goods and chattels seized after a successful execution. You should check with the Bailiff's Office about the approximate daily cost for this arrangement.)
Regardless of whether or not the execution is successful, the bailiff's expenses and the security guard service fees are deducted from these deposits for each attempt at execution. The costs you incur may only be recovered if the execution is successful and the payment of the defendant or the proceeds of the sale of goods and chattels are enough to cover the judgment debt plus the costs incurred.
For more details on the application procedure and other information about the Bailiff's Office, please visit the Judiciary's website.