- What are Garnishee Proceedings?
A garnishee proceeding is a form of judgment enforcement procedure used to pursue judgment debts, normally when a respondent fails to comply with a monetary judgment obtained by a claimant.
The rules governing these proceedings are provided under Order 49 of the Rules of Court 2012.
The three parties generally involved are the judgment creditor, judgment debtor and the garnishee.
- The judgment creditor is the person to which a debt is owed. He or she has obtained an order for the payment of money against the judgment debtor.
- The judgment debtor is the person against whom the judgment was made. He or she is obligated to satisfy the judgment debt.
- The garnishee is the third party who has debt due or accruing due to the judgment debtor.
The judgment creditor who has obtained a judgment for the payment of money against a judgment debtor may apply to the court to obtain a court order to instruct the garnishee, a third party indebted to the judgment debtor, to pay the debt which is due or accruing due to the judgment debtor, to the judgment creditor.
Lim Beng Choon J in the High Court in Kedah Kelang Papan Sdn Bhd v. Hansol Sdn Bhd (Teknibina Advisory Services Sdn Bhd, Garnishee) [1988] 1 CLJ Rep 645; [1988] 1 MLJ 434, at 437 had established that no garnishee order can be made unless some person at the time when the order is made, is indebted to the judgment debtor. It must be shown that there is a debt, merely showing that it is very probable that there soon will be a debt is insufficient.
The Federal Court has also approved the case of Binamin MJC Quarry Sdn Bhd v. Way Soon Construction Sdn Bhd [2001] 6 CLJ 213 HC which establishes that there must be a crystallised actionable debt by the garnishee to the judgment debtor before an absolute garnishee order could be given. Furthermore, the debt has to be distinctively or clearly identifiable and not lumped with the debts of third parties so that the debt can be attached and the terms of the garnishee order must also be precise, as established in Bumiputera-Commerce Bank Bhd v. Top-A Plastic Sdn Bhd [2008] 5 CLJ 737; [2008] 5 MLJ 34.
This proceeding can also be used to garnish the debtor’s bank account as provided for in O. 49 r. (1). The garnishee application will seek a court order to direct the debtor’s bank to attach an amount from the debtor’s bank account sufficient to satisfy the judgment debt owed to the judgment creditor.
The total amount payable by the garnishee is limited to the judgment amount owing by the judgment debtor to the judgment creditor and the costs of the proceedings.
- Application Process for a Garnishee Order
To commence garnishee proceedings, the judgment creditor can first apply to the court for a show cause order under Form 97. An application for a garnishee order is then made by filing an ex-parte notice of application supported by an affidavit in Form 98.
A garnishee order functions to summon the garnishee to court and to show cause as to why the order should not be made against him or her. This order to show cause is to be served to the garnishee and the judgment debtor at least seven days before the hearing of the application.
In the High Court case of Pernas Trading Sdn Bhd v. Senali Construction Works Sdn Bhd & Anor [1991] 3 CLJ (Rep) 439, Peh Swee Chin J held that a garnishee has the evidential burden to show cause why the garnishee order nisi should not be made absolute.
A garnishee may dispute the application made by the judgment creditor for various reasons namely the garnishee ceased to owe the judgment debtor any debt, the judgment debtor’s account with the garnishee bank is held on trust for a third party or that the judgment debtor’s bank account is jointly held with another account holder. In the event a garnishee fails to show cause, the court may make grant the order.
If the garnishee fails to attend court and dispute the debt due, then the court may make a garnishee order absolute on Form 99. However, if the garnishee does attend court and disputes liability to pay the debt due, the court then has a wide discretion to either decide the matter summarily or fix the matter for trial, thus attaching less significance to the Evidence Act or full trial procedure.
All payments by the garnishee in compliance with the garnishee order is considered a valid discharge of the garnishee’s liability to the judgment debtor to the extent of the amount paid to the judgment creditor. After the payment is completed, the judgment debtor loses its right to demand payment from the garnishee again.
- Prohibitions
There are several restrictions which prohibit certain funds from being garnished:
For one, according to Section 35 of the Government Proceedings Act 1956, garnishee proceedings cannot be taken up against the government. Therefore, the judgment creditor is unable to compel the government to pay the debts to him or her.
All payments or amounts of contributions under the Employees Social Security Act 1969 cannot be attached to garnishee orders according to section 41 of the Act.
According to Section 11 of the Workmen’s Compensation Act 1952, no payment payable under this Act is capable of being attached to a garnishee order or be passed to any person other than the workman by operation of law.
According to section 31 of the Employment Act 1955, the court shall not authorise payment of the money garnished to the secured creditor until the court shall have ascertained and caused to be paid the wages of such employee.
In the case of Binamin MJC Quarry Sdn Bhd v. Way Soon Construction Sdn Bhd; TRS Bina Sdn Bhd (Garnishee); Hong Leong Finance Bhd (Intervener) [2001] 6 CLJ 213; [2001] AMEJ 0202, it is established that a retention sum in a construction contract cannot be subjected to garnishee proceedings when the defect liability period has not expired.
Nicholas Lee Heng Jin
The University of Sheffield
