Part 53 – Committal and Sequestration

Scope of this Part

1. This Part deals with the power of the court to commit a person to prison or to make a sequestration order for failure to comply with an –
   1.  order requiring that person to do; or
   2.  undertaking by that person to do; an act within a specified time or by a specified date or not to do an act.

Order specifying time for act to be done

53.2

1. If a judgment or order specifies the time or date by which an act must be done the court may by order specify another time or date by which the act must be done.
2. If a judgment or order does not specify the time or date by which an act must be done, the court may by order specify a time or date by which it must be done.
3. The time by which the act must be done may be specified by reference to the day on which the order is served on the judgment debtor.
4.  An application for an order under this rule may be made without notice but the court may direct that notice be given to the judgment debtor.
5. Any order made under this rule must be served in the manner required by rule 53.3 (enforcement against an individual judgment debtor) or 53.4 (enforcement against an officer of a body corporate).

When committal order or sequestration order may be made

53.3

1. Subject to rule 53.5, the court may not make a committal order or a sequestration order unless —
   1. the order requiring the judgment debtor to do an act within a specified time or not to do an act has been served personally on the judgment debtor;
   2. at the time the order was served it was endorsed with a notice in the following terms:
      • “NOTICE: If you fail to comply with the terms of this order, proceedings may be commenced against you for contempt of court and you may be liable to be imprisoned.”; or, in the case of an order served on a body corporate, in the following terms:
      • “NOTICE: If you fail to comply with the terms of this order, proceedings may be commenced against you for contempt of court.”; and
   3. if the order requires the judgment debtor to do an act within a specified time or by a specified date, it was served in sufficient time to give the judgment debtor a reasonable opportunity to do the act before the expiration of that time or before that date.

Committal order or sequestration order against officer of body corporate

53.4

1. Subject to rule 53.5, the court may not make a committal order or a sequestration order against an officer of a body corporate unless ─
   1. a copy of the order requiring the judgment debtor to do an act within a specified time or not to do an act has been served personally on the officer against whom the order is sought;
   2.  at the time the order was served it was endorsed with a notice in the following terms:
      • “NOTICE: If [name of body corporate] fails to comply with the terms of this order proceedings may be commenced for contempt of court and you [name of officer] may be liable to be imprisoned or to have an order of sequestration made in respect of your property.”; and
   3.  if the order required the judgment debtor to do an act within a specified time or by a specified date, it was served in sufficient time to give the judgment debtor a reasonable opportunity to do the act before the expiration of that time or before that date.

Making committal order or sequestration order when judgment or order not served

53.5

1. This rule applies where the judgment or order has not been served.
2. If the order requires the judgment debtor not to do an act, the court may make a committal order or sequestration order only if it is satisfied that the person against whom the order is to be enforced has had notice of the terms of the order by being –
   1. notified of the terms of the order by post, telephone, FAX or otherwise; or
   2. present when the order was made.
3. The court may make an order dispensing with service of the judgment or order under rule 53.3 or 53.4 if it thinks it just to do so.

 Undertakings

53.6

1. An undertaking given to the court must, if practicable, be given in writing in the appropriate practice form and a copy of this form endorsed with a notice in accordance with rule 53.3(b) or 53.4 (b) must, if practicable, be served on the person giving the undertaking.

 Application for committal order or sequestration order

53.7

1. The application must specify the –
   1. exact nature of the alleged breach or breaches of the order or undertaking by the judgment debtor; and
   2. precise term of the order or undertaking which it is alleged that the judgment debtor has disobeyed or broken.
2. The application must be verified by affidavit.
3. The applicant must prove –
   1. service of the order endorsed with the appropriate notice under rule 53.3(b) or rule 54.3 (b); and
   2.  that the person against whom it is sought to enforce the order had notice of the terms of the order under rule 53.5 if the order required the judgment debtor not to do an act; or
   3.  that it would be just for the court to dispense with service.

Service of notice of hearing

53.8

1. The judgment creditor must serve on the judgment debtor or, in the case of a body corporate, the officer against whom it is sought to make a committal order or sequestration order, notice of the application for the order at least 7 days before the date fixed for hearing.
2. If the notice of application is served on the judgment debtor less than 7 days before the hearing, the court may direct that in all the circum­stances of the case sufficient notice has been given and may accordingly deal with the application.
3. The notice of application must be served in accordance with Part 5.
4. A copy of the application and of the evidence in support must be served with the notice.

Powers of the court

53.9

1. If satisfied that the notice of application has been duly served, the court may –
   1.  accept an undertaking from the judgment debtor or an officer of a body corporate who is present in court and adjourn the applica­tion generally;
   2. adjourn the hearing of the application to a fixed date;
   3. dismiss the application and make such order as to assessed costs under rule 65.11 as it considers to be just;
   4. make a committal order against a judgment debtor who is an individual;
   5.  make a committal order against an officer of a judgment debtor  which is a body corporate;
   6. make a sequestration order against a judgment debtor who is an individual or a body corporate;
   7. make a sequestration order against an officer of a judgment debtor which is a body corporate; or
   8. make a suspended committal order or sequestration order on such terms as the court considers just.

Restoration of adjourned hearing

53.10

1. If an application for a committal order or a sequestration order has been adjourned under rule 53.9 (b), the court office may fix a date for the adjourned hearing.
2. An application for a date to be fixed –
   1. may be made without notice; but
   2. must be supported by evidence on affidavit specifying –
      1.  the exact nature of the alleged breach or breaches of the undertaking by the judgment debtor; and
      2. the precise term or terms of the undertaking which it is alleged that the judgment debtor has disobeyed.
3. The notice of the restored hearing must –
   1.  state the date, time and place of the restored hearing; and
   2. be served on the judgment debtor or the officer of a body corporate personally at least 3 days before the adjourned hearing.
4.  A copy of the evidence under paragraph (2) must be served with the notice.

Application for enforcement of suspended committal order or order for sequestration

53.11

1. If the court has imposed terms under rule 53.9 (h) and the judgment creditor alleges that the judgment debtor has failed to comply with the terms imposed, the judgment creditor may apply for the suspended order to be enforced.
2.  The application must specify the –
   1.  precise term or terms of the suspended order which it is alleged that the judgment debtor has disobeyed; and
   2.  exact nature of the alleged breach or breaches of the terms of the suspended order by the judgment debtor.
3. The application must be verified by affidavit.
4. The court office must fix a hearing of the application.
5. The notice of hearing must be served on the judgment creditor or the officer of a body corporate personally at least 3 days before the adjourned hearing.
6. A copy of the evidence under paragraph (2) must be served with the application.

Special provisions relating to order for sequestration order

53.12

1. The judgment creditor may not sell any property seized under a sequestration order without the permission of the court.
2.  An application for permission must be supported by evidence on affidavit.