Order Taking Effect

Taking Effect

A judgment is entered as of the date when it is pronounced unless it is otherwise ordered.

A judgment generally takes effect from its date.  Interest runs from the date of entry.  In other cases, however service is necessary to make the judgment effective.

Where an interlocutory judgment for damages to be assessed is made and entered, the amount of damages, after being ascertained, is added to the judgment entered. The whole judgment is dated the date on which the interlocutory order is entered.

Service of Order

Where an order directs something to be done within a time limit and the order is not drawn up in due course, the order may be drawn up as of the date it was made, but extending the time limit until after service of the order.

A judgment for the recovery of monies need not be served before seeking execution unless the order directs payment within a certain time after service.

A judgment or order requiring a person to do an act must be served.  It is usually endorsed with a warning or a penal notice that a person to whom it is directed, is required to obey it within the time for doing the act.

Interest

Where a court orders the payment of a sum of money, by way of damages or otherwise the judge may also order payment of interest at the statutory rate on all or part of the money. The court may and will commonly exercise discretion to award interest from the commencement of proceedings where because money is clearly owed and should have been paid earlier, it is appropriate for interest to be granted.

Where the claim is difficult, requires assessment and judicial determination it may be that no interest is appropriate. Account will be taken of how quickly the proceedings have been prosecuted. If a party delays in commencing or prosecuting proceedings he or she may not be entitled to interest or the full extent of interest, to which they might otherwise be entitled.

In the case of commercial debts and transactions, legislation provides expressly for late payment of interest.

Staying / Suspending

An application may be made to stay or suspend the judgement pending an appeal. This application is made in the first instance to the court concerned. The court considers whether the appeal is made in good faith.

Where the appeal is genuine the court should conduct a review process analogous to that on  the balance of convenience when granting or refusing an interlocutory injunction. One or other party may suffer to a disproportionate degree depending on the outcome of the appeal.

Where there is a significant detriment to both parties, the court may grant a stay on terms that deal with that detriment. This might include undertakings not to take irreversible steps to enforce the judgement or about the preservation of assets so that a party can ultimately recover.

Apart from circumstances of an appeal a stay may be granted on a temporary basis to give one party an opportunity to satisfy the judgement or to negotiate implementation.

Stay on Execution

A stay may be granted either on the judgement or on execution (enforcement) of the judgement. It may be given on the basis of hardship to the party concerned.

Where a judgement is for the payment of debt or damages, there are statutory provision in relation to execution and enforcement of the judgement. The court may grant a stay on execution for such time upon such conditions as the court thinks reasonable where it is satisfied at the time of giving judgement the defendant

• is unable to pay in full the sum and all costs payable
• such inability is not caused by the  debtor’s own conduct or default
• there are reasonable grounds for granting an extension of time within which to pay the judgement sum and costs

Apart from the statutory power to stay, there is an inherent power to grant a stay on execution. The creditor may take steps to protect its position  short of executing the judgement.

Judgement will not automatically take effect and vest the assets of the other party in the successful party. It is a matter for the successful party to take steps to enforce a judgement.

Order Issues

The Registrar draws up and records the written order. In more complicated cases the parties may send draft orders to the Registrar and the case may be adjourned for finalisation of the order. Where there is a dispute regarding what the order should say the matter may need to be listed before the judge and submissions made.

An  order may be on terms that something be done within a certain time limit or in default, certain  consequences follow. This is a so-called unless order. It may provide for example that if certain steps are not taken, entire proceedings  or the claim or defence of one party may be struck out.

In principle, the court has jurisdiction to relieve a party from the consequences of failure to comply with the terms of an unless order. The court can extend time. However, the courts have indicated that this should not be readily done, in particular if there is any question of wilful default.

Setting Aside

A slip or obvious error in an order may be corrected without an appeal. This may be by  consent allowing the Registrar to correct, with the approval of court. Where the parties do not consent, the order may only be corrected upon application to the court.

Courts have inherent jurisdiction to correct an order that does not properly record the court’s decision. It is only in special circumstances that the court would interfere with an order after it has been finalised and entered. This will only be done in special, unusual, and exceptional circumstances. They must be such that there would be a denial of justice otherwise. It would have to be something very fundamental.

If a judgement is shown to be procured by fraud it may be set aside. It must be proved the courts were deceived into giving the judgement by means of a false case known to be false, or not believed to be true or made recklessly without knowledge of the subject.

There must be conscious and deliberate dishonesty, and the court order must be procured by it. Not all fraud is sufficient to set aside judgement. It must be shown on the balance of probabilities that the judgement was obtained by fraudulent testimony known as such to the successful party, which was material to the decision.