Fiji - Attachment of Assets
Nicholas Barnes, Partner - MUNRO LEYS Lawyers & Notaries Public
Rajnil Krishna, Solicitor - MUNRO LEYS Lawyers & Notaries Public
Originally from Attachment of Assets
1. What is the general nature and effect of judicial measures available for plaintiffs to obtain provisional relief affecting property of debtors to obtain security for judgments to be obtained (“attachments”)? Freezing property in place? Placing it in the custody of a third party, such as a court official, sheriff or marshall?
An injunction can be granted over assets restraining the defendant from disposing of or dealing with his/her assets. The injunction can be granted even over assets which the plaintiff does not assert a propriety claim over.
2. What is the form of the attachment? Injunction? Other kind of judicial order? Specify.
Generally speaking, the relief available is an injunction which restricts the way in which a defendant can deal with his/her assets prior to any judgment.
Restriction on dealing, as described in 1, is obtained through a ‘Mareva Injunction’. A mareva injunction is an interim relief and it acts in personam only; therefore, it is not an attachment on the assets. Together with a mareva injunction other ancillary orders can be made such as an order for discovery of the defendant’s assets (anton pillar). The purpose of the mareva injunction is not to provide security for the judgment, but to prevent the defendant from disposing of assets in order to defeat a judgment. (See below, 7, for the test applied). The effect of a mareva injunction is to ensure that the assets are not dissipated and are available at the time of any eventual enforcement.
3. What is the jurisdictional basis for an attachment? Is the presence of the debtor’s property a sufficient basis for an attachment to be obtained, assuming other requirements are satisfied? To what extent may attachments be used as a basis for obtaining personal jurisdiction over a debtor? To what extent are attachments or similar orders intended to have extraterritorial effect?
Generally, for a mareva injunction, the Courts have required that the assets of the defendant be within the jurisdiction (See 7 below). In exceptional cases, an order can be granted restraining the dealing of assets outside the jurisdiction; Halsbury’s Laws of England, (4th Ed. Reissue), Vol 24, ‘Injunction’ para. 866.