Hong Kong Regulations

THE RULES OF THE HIGH COURT - ORDER 45

ENFORCEMENT OF JUDGMENTS AND ORDERS: GENERAL

(Past version on 30/06/1997).

Adaptation amendments retroactively made - see 25 of 1998 s. 2 ENFORCEMENT OF
JUDGMENTS AND ORDERS

1. Enforcement of judgment, etc., for payment of money (O. 45, r. 1)

(1) Subject to the provisions of these rules, a judgment or order for the
payment of money, not being a judgment or order for the payment of money into
court, may be enforced by one or more of the following means, that is to say-

   (a)  writ of fieri facias;

   (b)  garnishee proceedings;

   (c)  a charging order;

   (d)  the appointment of a receiver;

   (e)  in a case in which rule 5 applies, an order of committal;

   (f)  in such a case, writ of sequestration; (HK)(g) an order of
        imprisonment made under Order 49B.

(2) Subject to the provisions of these rules, a judgment or order for the
payment of money into court may be enforced by one or more of the following
means, that is to say-

   (a)  the appointment of a receiver;

   (b)  in a case in which rule 5 applies, an order of committal;

   (c)  in such a case, writ of sequestration.

(3) Paragraphs (1) and (2) are without prejudice to any other remedy available
to enforce such a judgment or order as is therein mentioned or to any
written law relating to bankruptcy or the winding up of companies.

(4) In this Order references to any writ shall be construed as including
references to any further writ in aid of the first mentioned writ.

3. Enforcement of judgment for possession of land (O. 45, r. 3)

(1) Subject to the provisions of these rules, a judgment or order for the
giving of possession of land may be enforced by one or more of the following
means, that is to say-

   (a)  writ of possession;

   (b)  in a case in which rule 5 applies, an order of committal;

   (c)  in such a case, writ of sequestration.

(2) A writ of possession to enforce a judgment or order for the giving of
possession of any land shall not be issued without the leave of the Court
except where the judgment or order was given or made in a mortgage action to
which Order 88 applies.

(3) Such leave shall not be granted unless it is shown that every person in
actual possession of the whole or any part of the land has received such
notice of the proceedings as appears to the Court sufficient to enable him to
apply to the Court for any relief to which he may be entitled.

(4) A writ of possession may include provision for enforcing the payment of
any money adjudged or ordered to be paid by the judgment or order which is to
be enforced by the writ.

4. Enforcement of judgment for delivery of goods (O. 45, r. 4)

(1) Subject to the provisions of these rules, a judgment or order for the
delivery of any goods which does not give a person against whom the judgment
is given or order made the alternative of paying the assessed value of the
goods may be enforced by one or more of the following means, that is to say-

   (a)  writ of delivery to recover the goods without alternative provision
        for recovery of the assessed value thereof (hereafter in this
rule referred to as a "writ of specific delivery");

   (b)  in a case in which rule 5 applies, an order of committal;

   (c)  in such a case, writ of sequestration.

(2) Subject to the provisions of these rules, a judgment or order for the
delivery of any goods or payment of their assessed value may be enforced by
one or more of the following means, that is to say-

   (a)  writ of delivery to recover the goods or their assessed value;

   (b)  by order of the Court, writ of specific delivery;

   (c)  in a case in which rule 5 applies, writ of sequestration. An
        application for an order under sub-paragraph (b) shall be made by
        summons, which must, notwithstanding Order 65, rule 9, be served on
        the defendant against whom the judgment or order sought to be enforced
        was given or made.

(3) A writ of specific delivery, and a writ of delivery to recover any goods
or their assessed value, may include provision for enforcing the payment of
any money adjudged or ordered to be paid by the judgment or order which is to
be enforced by the writ.

(4) A judgment or order for the payment of the assessed value of any goods may
be enforced by the same means as any other judgment or order for the payment
of money.

5. Enforcement of judgment to do or abstain from doing any act (O. 45, r. 5)

(1) Where-

   (a)  a person required by a judgment or order to do an act within a time
        specified in the judgment or order refuses or neglects to do it within
        that time or, as the case may be, within that time as extended or
        abridged under Order 3, rule 5, or

   (b)  a person disobeys a judgment or order requiring him to abstain from
        doing an act, then, subject to the provisions of these rules, the
        judgment or order may be enforced by one or more of the following
        means, that is to say-

        (i)    with the leave of the Court, a writ of sequestration against
               the property of that person;

        (ii)   where that person is a body corporate, with the leave of the 
               Court, a writ of sequestration against the property of any
               director or other officer of the body;

        (iii)  an order of committal against that person or, where that person
               is a body corporate, against any such officer.

(2) Where a judgment or order requires a person to do an act within a time
therein specified and an order is subsequently made under rule 6 requiring
the act to be done within some other time, references in paragraph (1) of this
rule to a judgment or order shall be construed as references to the order made
under rule 6.

(3) Where under any judgment or order requiring the delivery of any goods the
person liable to execution has the alternative of paying the assessed value of
the goods, the judgment or order shall not be enforceable by order of
committal under paragraph (1), but the Court may, on the application of the
person entitled to enforce the judgment or order, make an order requiring the
first mentioned person to deliver the goods to the applicant within a time
specified in the order, and that order may be so enforced.

6. Judgment, etc. requiring act to be done: order fixing time for doing it (O.
45, r. 6)

(1) Notwithstanding that a judgment or order requiring a person to do an act
specifies a time within which the act is to be done, the Court shall,
without prejudice to Order 3, rule 5, have power to make an order requiring
the act to be done within another time, being such time after service of that
order, or such other time, as may be specified therein.

(2) Where, notwithstanding Order 42, rule 2(1), or by reason of Order 42, rule
2(2), a judgment or order requiring a person to do an act does not specify a
time within which the act is to be done, the Court shall have power
subsequently to make an order requiring the act to be done within such time
after service of that order, or such other time, as may be specified therein.

(3) An application for an order under this rule must be made by summons and
the summons must, notwithstanding anything in Order 65, rule 9, be served on
the person required to do the act in question.

7. Service of copy of judgment, etc., prerequisite to enforcement under r. 5
(O. 45, r. 7)

(1) In this rule references to an order shall be construed as including
references to a judgment.

(2) Subject to Order 24, rule 16(3), Order 26, rule 6(3) and paragraphs (6)
and (7) of this rule, an order shall not be enforced under rule 5 unless-
(L.N. 103 of 1994)

   (a)  a copy of the order has been served personally on the person required
        to do or abstain from doing the act in question, and

   (b)  in the case of an order requiring a person to do an act, the copy has
        been so served before the expiration of the time within which he was
        required to do the act.

(3) Subject as aforesaid, an order requiring a body corporate to do or abstain
from doing an act shall not be enforced as mentioned in rule 5(1)(ii) or (iii)
unless-

   (a)  a copy of the order has also been served personally on the officer
        against whose property leave is sought to issue a writ of
        sequestration or against whom an order of committal is sought, and

   (b)  in the case of an order requiring the body corporate to do an act, the
        copy has been so served before the expiration of the time within which
        the body was required to do the act.

(4) There must be indorsed on the copy of an order served under this rule a
notice informing the person on whom the copy is served-

   (a)  in the case of service under paragraph (2) that if he neglects to obey
        the order within the time specified therein, or, if the order is to
        abstain from doing an act, that if he disobeys the order, he is liable
        to process of execution to compel him to obey it, and

   (b)  in the case of service under paragraph (3) that if the body corporate
        neglects to obey the order within the time so specified or, if the
        order is to abstain from doing an act, that if the body corporate
        disobeys the order, he is liable to process of execution to compel the
        body to obey it.

(5) With the copy of an order required to be served under this rule, being an
order requiring a person to do an act, there must also be served a copy of any
order made under Order 3, rule 5, extending or abridging the time for doing
the act and, where the first-mentioned order was made under rule 5(3) or 6 of
this Order, a copy of the previous order requiring the act to be done.

(6) An order requiring a person to abstain from doing an act may be enforced
under rule 5 notwithstanding that service of a copy of the order has not been
effected in accordance with this rule if the Court is satisfied that, pending
such service, the person against whom or against whose property it is sought
to enforce the order has had notice thereof either-

   (a)  by being present when the order was made, or

   (b)  by being notified of the terms of the order, whether by telephone,
        telegram or otherwise.

(7) Without prejudice to its powers under Order 65, rule 4, the  Court may
dispense with service of a copy of an order under this rule if it thinks it
just to do so.

8. Court may order act to be done at expense of disobedient party (O. 45, r.
8)

If an order of mandamus, a mandatory order, an injunction or a judgment or
order for the specific performance of a contract is not complied with, then,
without prejudice to its powers to punish the disobedient party for contempt,
the Court may direct that the act required to be done may, so far as
practicable, be done by the party by whom the order or judgment was obtained
or some other person appointed by the Court, at the cost of the disobedient
party, and upon the act being done the expenses incurred may be ascertained in
such manner as the Court may direct and execution may issue against the
disobedient party for the amount so ascertained and for costs.

9. Execution by or against person not being a party (O. 45, r. 9)

(1) Any person, not being a party to a cause or matter, who obtains any order
or in whose favour any order is made, shall be entitled to enforce obedience
to the order by the same process as if he were a party.

(2) Any person, not being a party to a cause or matter, against whom obedience
to any judgment or order may be enforced, shall be liable to the same process
for enforcing obedience to the judgment or order as if he were a party.

10. Conditional judgment: waiver (O. 45, r. 10)

A party entitled under any judgment or order to any relief subject to the
fulfilment of any condition who fails to fulfil that condition is deemed to
have abandoned the benefit of the judgment or order, and, unless the  Court
otherwise directs, any other person interested may take any proceedings which
either are warranted by the judgment or order or might have been taken if the
judgment or order had not been given or made.

11. Matters occurring after judgment: stay of execution, etc. (O. 45, r. 11)

Without prejudice to Order 47, rule 1, a party against whom a judgment has
been given or an order made may apply to the Court for a stay of execution of
the judgment or order or other relief on the ground of matters which have
occurred since the date of the judgment or order, and the Court may by order
grant such relief, and on such terms, as it thinks just.

12. Forms of writs (O. 45, r. 12)

(1) A writ of fieri facias must be in such of the Forms Nos. 53 to 63 in
Appendix A as is appropriate in the particular case.

(2) A writ of delivery must be in Form No. 64 or 65 in Appendix A, whichever
is appropriate.

(3) A writ of possession must be in Form No. 66 or 66A in Appendix A.

(4) A writ of sequestration must be in Form No. 67 in Appendix A.

13. Enforcement of judgments and orders for recovery of money, etc. (O. 45, r.
13)

(1) Rule 1(1) of this Order, with the omission of sub-paragraphs

   (e)  and (f) thereof, and Orders 46 to 51 shall apply in relation to a
        judgment or order for the recovery of money as they apply in relation
        to a judgment or order for the payment of money. <* Note - Exp. X-Ref.: Orders 
 46, 47, 48, 49, 49B,
        50, 51 *>

(2) Rule 3 of this Order, with the omission of paragraph (1)(b) and

   (c)  thereof, and Order 47, rule 3(2), shall apply in relation to a
        judgment or order for the recovery of possession of land as they apply
        in relation to a judgment or order for the giving or delivery of
        possession of land.

(3) Rule 4 of this Order, with the omission of paragraphs (1)(b) and (c) and
(2)(c) thereof, and Order 47, rule 3(2), shall apply in relation to a judgment
or order that a person do have a return of any goods and to a judgment or
order that a person do have a return of any goods or do recover the assessed
value thereof as they apply in relation to a judgment or order for the
delivery of any goods and a judgment or order for the delivery of any goods or
payment of the assessed value thereof respectively.

14. Power of the Court to order immediate execution (O. 45, r. 14)

(HK)(1) The Court may at the time of giving judgment, on the oral application
of the party in whose favour the judgment is given, order immediate execution
thereof without the issue of a writ of execution, except as to so much as
relates to the costs, and that the judgment shall be executed as to the costs
as soon as the amount thereof has been ascertained by taxation.

(2) The order for immediate execution shall be in writing and shall be
sufficient authority to the bailiff to proceed at once to execution of the
judgment against the property of the party against whom judgment is given:
Provided that the party obtaining the order shall as soon thereafter as
practicable comply with the requirements of Order 46, rule 6: Provided further
that, if the party against whom the order has been made satisfies the Court
that he has sufficient means and intends to satisfy the judgment, the Court
may discharge the order for immediate execution.

15. Judgment for money against representatives of deceased persons (O. 45, r.
15)

(HK) If the judgment is against a party as the representative of a deceased
person and such judgment is for money to be paid out of the property of the
deceased person, it may be executed by the attachment and sale of any such
property or, if no such property can be found and the defendant fails to
satisfy the Court that he has duly applied such property of the deceased
person as may be proved to have come into his possession, the judgment may be
executed against the defendant to the extent of the property not duly applied
by him, in the same manner as if the judgment had been against him personally.

16. Execution in case of cross-judgments for money (O. 45, r. 16)

(HK) If there are cross-judgments between the same parties for the payment of
money execution shall be taken out by that party only who has obtained a
judgment for the larger sum and for so much only as may remain after deducting
the smaller sum, and satisfaction for the smaller sum shall be entered on the
judgment for the larger sum as well as satisfaction on the judgment for the
smaller sum, and if both sums are equal satisfaction shall be entered on both
judgments.

17. Application for leave to issue execution by one of several persons
entitled (O. 45, r. 17)

(HK)(1) If a judgment has been given jointly in favour of more persons than
one, any one or more of such persons, or his or their representatives, may
apply to the Court for leave to issue execution on the whole judgment for the
benefit of them all or, where any of them has died, for the benefit of the
survivors and of the representative in interest of the deceased person.

(2) If the Court grants such leave it shall make such order as it may think
fit for protecting the interests of the persons who have not joined in the
application. (Enacted 1988)