JUDGMENT DEBTOR SUMMONS (FOREIGN PROPERTY)

The law in Malaysia is fairly underdeveloped on the matter. S. 4 of the Debtors Act
1957 and Order 74 of the ROC only vaguely provides that the courts have the
power to call upon judgment debtors to produce documents and books in relation to
their property.

With regard to Order 48 ROC (by way of interpreting the intention of the provision) it
is submitted that the process of JD examination is to aid in confirming and
supplementing any existing information which the judgment creditor might have by
allowing him to obtain additional or new information which may be available in aid of
enforcement.

The only Malaysian case that has alluded towards extending said power outside the
local jurisdiction is Kwek Seow Kee and the decision was reached with reference to
Singaporean and English case law.

English common law has shown that the courts can compel a JD to produce by way
of affidavit any documents or books signalling their assets and property be it within
or outside the jurisdiction.

Meanwhile in Singapore the recent 2020 Court of Appeal case of Sun Travel
resolved a High Court conflict on the matter by holding that the courts do indeed
have the power to compel JD’s to show proof of their assets both within and outside
of local jurisdiction.

 Malaysian
1. S. 4(2) Debtor’s Act 1957
- Officer has power to call upon debtor to produce all books, papers or
document in his possession or power relating to such property.
2. Halsbury’s Laws of Malaysia – Civil Procedure (Volumes 7(1) and (2)) –
(ii) Execution of Judgment Debtor under Order 48
- In Malaysia it is not clear whether the JD may be questioned in relation to his
foreign assets.
- Singapore Rules of Court 1996 introduced a wider rule which allows oral
examination in relation to whatever property the judgment debtor has and
wheresoever situated.
 3. Kwek Seow Kee [“No: 2”] & Anor v KT Packaging Sdn Bhd [1998] MLJU
77, High Court as per Abdul Malik Ishak J

BRIEF FACTS:

Plaintiff obtained judgment against Defendant. Defendant failed to pay judgment sum
and refused to pay. Plaintiff sought order that D’s managing director appear before
Deputy Registrar to be examined on the whereabouts of the assets of the D’s
company.

HELD:

- Order 48 of the RHC provides the courts with the power to examine the
judgment debtor to gather sufficient information to determine the appropriate
mode of enforcement.

RELEVANT EXCERPT:

“The sting of Order 48 of the RHC is to provide a process for the examination of the
judgment debtor so as to gather information as to his means of paying the judgment
and flowing from it the judgment creditor will be able to determine the appropriate
mode of enforcement. The process of examination would certainly come in handy as
it would confirm and supplement any existing information which the judgment
creditor might have by allowing him to obtain additional or new information which
may be available for the sole purpose of enforcement. It is a matter of course that
the court will make an order for examination of a judgment debtor as it is the
judgment creditor's right to enforce the judgment or order which he has obtained.
The judgment creditor is entitled to enjoy the fruits of his labour.”

“Now, the judgment debtor too may be examined on the property which he owns in a
foreign  jurisdiction. This proposition was ventilated in two cases. Firstly, in Indian
Overseas Bank v. Sarbjit Singh (1990) 3 MLJ XXX; and, secondly, in Interpool Ltd v.
Galani (1988) 1 Q.B. 738. The language employed in Order 48 of the RHC do not
bar this court, if circumstances justify it, to embark on an inquiry as to the judgment
debtor's foreign  property to aid in its enforcement process particularly if there is a
chance that the proceeds of that foreign   property may be transferred to the
judgment creditor's own jurisdiction in the future. The inquiry may even reveal juicy
details, hitherto unknown, about the judgment debtor's property within the
jurisdiction. In the context of this case, a link between a bank in Johor Bahru with a
bank in Singapore, for instance. Thus, this court has the jurisdiction to restrain a
judgment debtor from transferring or disposing of his assets within or outside the
jurisdiction (Babanaft International Co. v. Bassatne (1989) 2 W.L.R. 232). This court
too has the inherent power to summarily order the judgment debtor to file and serve
an affidavit disclosing all assets wherever situated or kept (Maclaine Watson& Co.
Ltd v. International Tin Council (No. 2) (1988) 3 W.L.R. 1190). In the examination
conducted under Order 48 of the RHC, if the judgment debtor refuses to answer
questions put to him, the judgment creditor has an option to apply for an order of
committal against the judgment debtor. This would be a sure way of ensuring
compliance by the judgment debtor.”

 United Kingdom
4. Interpool Ltd v Galani [1988] QB 738, Court of Appeal as per Lloyd and
Balcombe LJJ

BRIEF FACTS:

P obtained judgment in HC of Paris against D who was then living in France. When
D was living in England the judgment was registered in the Queen’s Bench Division.
Judge ruled that the D was obliged during his oral examination to answer any
questions or to produce any books or other documents in his possession relating to
his property or other means outside the jurisdiction.

HELD:

- JD may be asked questions relating to assets outside the jurisdiction

- Judgment to be enforced was registered in England pursuant to a reciprocal
enforcement scheme between England and France.
5. Babanaft International Co SA v. Bassanthe [1988] 1 All ER 433, Court of
Appeal as per Kerr, Neill and Nicholas LJJ

BRIEF FACTS:

Plaintiffs obtained judgment against Defendants who were two brothers of Lebanese
nationality one of whom lived in Switzerland while the other lived mainly in Greece.
They owned property in the United Kingdom and carried on shipping and oil-trading
transactions worldwide. Judge ordered defendants to file an affidavit disclosing their
assets wherever situated and granted an injunction restraining the defendants from
dealing with their assets outside the jurisdiction without giving Plaintiffs notice of their
intention to do so.

HELD:

- Court may grant injunction to restrain a JD from transferring or disposing of

his assets within or outside jurisdiction which he might otherwise do to avoid
revealing them in an examination
- Also, the debtor may be required to file and serve an affidavit disclosing
assets wherever situated.

6. Maclaine Watson & Co Ltd v International Tin Council (No. 2) [1989] Ch

286, Court of Appeal as per Kerr, Nourse and Ralph Gibson LJJ

BRIEF FACTS:

Plaintiffs obtained an award in their favour. Judgment was unsatisfied. Plaintiff

sought an order that a proper officer of the Defendants ITC should attend court to be
examined orally as to the nature, value and location of all assets within the UK and
outside the jurisdiction. The master refused to make such an order. Upon appeal,
judge ordered D to disclose full particulars of nature, value and location of its assets
within the UK and outside the jurisdiction by way of affidavit.

HELD:

- Debtor may be required to file and serve an affidavit disclosing all assets
wherever situated.
 Singapore
7. Indian Overseas Bank v Sarabjit Singh [1990] 3 MLJ xxxi
- Assistant Registrar ruled that the examination need not be confined to
property within the jurisdiction but qualified this by ruling that questions
concerning property owned by the JD in Japan could only be asked if that
 property could be used to satisfy the judgment obtained in Singapore; as the
judgment was not enforceable in Japan, the questions could not be asked.

8. Sun Travels & Tours Pvt Ltd v Hilton International Manage (Maldives)
Pvt Ltd [2019] SGHC 291
- High Court allowed the examination of judgment debtor in relation to assets in
a jurisdiction where the judgment could not be enforced.
- Emphasizes that the purpose of examination of JD is for information gathering
in order to allow the enforcement of judgment to be more effective.

BRIEF FACTS:

Defendants obtained arbitration award in their favour and sought to have it enforced
in Maldivian courts. Plaintiff then obtained a judgment that held that the underlying
contract was void and unenforceable. The Maldivian courts then declined to enforce
the award.

Defendants obtained leave to enforce arbitration awards in Singapore. Defendants

also took out examination of JD proceedings against P.

HELD:

- Nothing in Order 48 Rule 1 limits the examination of JD to assets located in

foreign jurisdiction where the judgment is recognized or enforceable.

RELEVANT EXCERPT:

“It followed from the above that the EJD process under Order 48 Rule 1 of the ROC
is not constrained by the question whether the Singapore judgment sought to be
enforced is in fact recognised in the overseas jurisdiction where the assets or
judgment debtor are located. That is, once a Singapore judgment or order for
payment is made, the court may order an oral examination be made on any property
wheresoever located. The clear objective is thus to allow information to be obtained,
with the aim of allowing the plaintiff to determine how to enforce the judgment or
order made in her favour. Thus nothing in Order 48 Rule 1 of the ROC or Form 99
leads to the conclusion that recognition or enforceability of the judgment in a foreign
jurisdiction should control or limit the extent of the examination.”
 9. Sun Travels & Tours Pvt Ltd v Hilton International Manage (Maldives)
Pvt Ltd [2020] SGCA 65, Court of Appeal
- Concerned the types of questions permissible during the EJD process. In this
appeal, the Appellant had objected to answering questions about its assets in
the Maldives on the basis that those assets would not be available for
satisfaction of the judgment debt.

HELD:

- Confirmed that questions could be asked about assets of the JD in a foreign

jurisdiction – regardless of the enforceability of the Singapore judgment there.
- Court of appeal resolved the conflict in the earlier HC decisions of Indian
overseas Bank and Sun Travels.