Garnishee Proceedings

(Definition/Order/Application/Cause/Consideration/Absolute)
DOACCA

Garnishee proceedings in general can be defined as a mode of enforcement of

which the judgment creditor recover money from third party which supposedly become
the money or property of judgment debtor. Garnishee proceedings are one of the
modes of enforcement of money judgment under the ROC 2012. Under Order 49 Rule
1(1) of ROC 2012, judgment creditor may apply before the court for an order requiring
the third party to directly pay the sum to the creditor instead of payment to the debtor.
However, some funds cannot be garnished (for example, funds under the Employees
Provident Fund Act).

Firstly, application. Application for garnishee order shall be made ex parte by way
of notice of application supported with affidavit in Form 98 per Order 49 Rule 2(1) of
ROC 2012. Within the affidavit, the applicant or creditor shall identify the judgment to be
enforced, unpaid amount at time of application, and beliefs that the third party is within
the jurisdiction.

Secondly, showing cause not to grant garnishee order. Under Order 49 Rule
1(2), once application has been made, the court shall grant order in Form 97 as an
order to show cause as to why a garnishee order should not be made. As such, the
order the order shall be then served to the garnishee personally as well as the judgment
debtor, per Order 49 Rule 3(1) of ROC 2012. Hearing date will be set in order for the
garnishee or judgment debtor to appear before the court to show cause.

Thirdly, consideration from court for garnishee order absolute. Once application
and order to show cause has been served, the court has the duty to consider whether or
not to grant approval for garnishee order for the applicant or judgment creditor, taking
into consideration the facts presented from all parties to the case. If the garnishee
attends court, the Court can either decide the matter summarily or fix the matter for trial,
provided under O. 49, r. 5.

Adham Hensem
 In Kedah Kelang Papan Sdn Bhd v Hansol. Sdn Bhd (Teknibina Advisory
Services Sdn Bhd,. Garnishee) [1988], the court shall only grant order if:

1. Garnishee at that time indeed indebted against judgment debtor

2. Debts can either be present debt or future debts payable to the judgment debtor
from the garnishee, of which now payable to the judgment creditor.
3. The words “or accruing’ are proposed to apply to those cases wherein there are
obligations owed at present time payable later on.
4. Future debts, although not yet payable is also an existing obligation

However, if there is a claim from third party other than garnishee and judgment
debtor, the court may order for a specific date of hearing, of which such third party shall
convince the court on why he is entitled for the sum from garnishee or judgment debtor,
and not the judgment creditor, per Order 49 Rule 6(1) of ROC 2012. In Tay Way Boon
v Omar. Marican Holdings Sdn Bhd [1991], the court was of the opinion that the
judgment creditor only entitled for debt which is yet to be assigned, and not the sum
which is already the entitlement of another party.

Fourthly, absolute order from court. Once consideration has been made, or in the
event that garnishee does not attend or dispute the amount claimed by the judgment
creditor, absolute order of garnishee proceedings shall be made by court in Form 99 per
Order 49 Rule 4(1) of ROC 2012. Even, if there is Mareva injunction against the
garnishee, the court may still grant order enabling the judgment creditor to recover the
sum,as stated in Labtec Sdn Bhd v Resilient. Construction Sdn Bhd [1992].
Nonetheless, the judgment debtor may still apply to set aside order to show cause or
absolute order from court, supported with justifiable reasoning, stated in Hong Kong &
Shanghai Banking Corp. v. Goh Su Liat. [1986].

However, if the garnishee disputes liability, the court will summarily determine the
issue in summary or order any question necessary in order to determine the liability of
the garnishee to be tried, before any final order is made to grant or not to grant order in
favour of the applicant, stated under Order 49 Rule 5 of ROC 2012.

Adham Hensem
 On behalf of the judgment debtor, even if he does not involve in the garnishee
proceedings, he has the right to apply to set aside either order to show cause or
absolute order, if judgment debtor believe that the garnishee proceeding shall not
commence in the first place, stated in Hong Kong and Shanghai Banking
Corporation v Goh Su Liat.

After an order nisi is made, the garnishee cannot deal with the money, per Order
49, rule 3(2), ROC 2012. In simpler words, garnishee order also act in the nature of
injuction against the garnishee.

Adham Hensem