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Can a Bank Joint Names Savings Account be garnished / di beku?

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asked on Mar 27, 2021 at 21:50
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edited on Mar 27, 2021 at 21:56
by   jeff005
Preface :

Garnishee Order / Perintah Garnisi

[Other ref :  Malaysia Employment Act 1955 (Akta Kerja 1955)]
 
Excerpts from MalaysiaNET
 
Understanding Garnishee Proceedings

There is a common misunderstanding that a matter in court ends once the judge delivers a judgement – “Judge bangs the gavel. Case closed”, so to speak.



In practice however, upon receiving a judgement, the winning party of a civil suit must proceed to enforce the court order for his/her monetary claim.

Garnishee Proceeding, as provided under Order 49 of the Rules of Court 2012 (ROC 2012), is one of the ways to execute a judgment or court order.

A typical scenario when a Garnishee Proceeding takes place is where a Judgment Creditor (the winning party) chooses to enforce the court order (i.e. makes the monetary claim), not against the Judgment Debtor (the losing party), but against a third party who owes a debt to the Judgment Debtor (the Garnishee). 

The garnishee is usually a bank with whom the Judgment Debtor maintains an account, but this can also be any other party who owes debt to the Judgment Debtor.

To initiate the proceedings, a Judgment Creditor must file an ex-parte Notice of Application supported by an affidavit to obtain a Garnishee Order Nisi – O.49 r.2 ROC 2012. This order functions to summon the Garnishee to the court, in order to show cause as to why a Garnishee Order Absolute should not be made against him/her

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5 Answers

answered on Mar 28, 2021 at 12:22
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edited Mar 28, 2021 at 14:53
by   jeff005
Personal Interpretations :

Notes :
Judgement Debtor (Manglish)
Judgement Debtor (British English)
Judgment Debtor (American English)

Ways that the Judgement Creditor can consider to recover the Judgement debt from the Judgement Debtor. The following are options the Bank has for their further execution:-

 
Common in Malaysia
1.     Writ of Seizure and Sale (WSS)
2.     Garnishment Order on personal banking account
3.     Judgement Debtor Summons (if in gainful employment)
4.     Committal Order to Debtor
5.     Bankruptcy Proceedings for Individual (New lawsuit / Final Lawsuit).
6.     Winding-up Proceedings (for company).

7.     Others.. not common in Malaysia.
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answered on Mar 28, 2021 at 17:53
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edited Mar 28, 2021 at 17:57
by   jeff005
Official Portal
Office Of The Chief Registrar
Federal Court Of Malaysia

WHAT DO I DO WITH COURT ORDER?
When you obtained a judgment against the opposing party, you are first required to serve the judgment.
Upon receiving the judgment, the opposing party must obey the terms ordered against him/her by the Court.
If the opposing party fails or refuses to comply with the order, our legal system provides several types of enforcement procedures.

 
ENFORCEMENT OF JUDGMENT
Judgment Debtor Summons
i) If you are enforcing the judgment you are referred to as the judgement creditor and the opposing party as the judgment debtor.
ii) This is an application which can be used for discovery of information on the assets and financial means of the judgment debtor.
iii) The judgment debtor will be called to appear before the Judge/Magistrate.
iv) The Court can order the judgment debtor to pay the judgement sum either in one lump sum or instalments.
v) If the judgment debtor fails to comply with the Court order, he will be called upon again to show cause why he should not be imprisoned.
 
Writ of Seizure and Sale
i) This application is applicable to movable properties.
ii) The Court will command the Sheriff or Bailiff to seize and sell of the property of the judgment debtor to satisfy the judgment sum due.
iii) This process will be carried out through an auction of the seized items.
iv) The proceeds will be channeled to the Judgement Creditor.
 
Writ of Possession
i) This application is exclusively for immovable properties.
ii) The Court directs the Sheriff/Bailiff to enter and take possession of the Judgment Debtor’s property.
iii) The seized property will be auctioned off to satisfy the judgment debt.
 
Garnishee Proceedings  (Note - as in Malaysia)
i) A Garnishee application may be applied to attach monies owed from a judgment debtor’s bank account to satisfy the sum due.
ii) The Court will order the judgment debtor’s banks to attach whatever amount in the judgment debtor’s bank account to satisfy the judgment debt owed to the judgment creditor.
iii) In the first process the judgment creditor may obtain an order to attach/ freeze the judgment debtor’s bank account. iv) In the second stage the Court will order the Bank to remit the monies in the account to the judgement creditor to satisfy the judgment. 
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answered on Mar 28, 2021 at 18:49
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edited Mar 28, 2021 at 19:05
by   jeff005
Personal Notes :

Every case has its peculiar set of facts, and whether the garnishee has priority over a third party, depends very much on the available facts. In Tay Way Boon & Ors v Omar Marican Holdings Sdn Bhd & Ors [1991] 1 MLJ 122, subject to the set of facts there, Mohamed Dzaiddin J (as he then was) recognized that a garnishee order could only attach debts which the debtor himself was free to deal with. The court there remarked: “The debtor himself is bound by an equitable assignment which is independent of the giving of notice. The garnishor, therefore, cannot attach a debt which has been equitably assigned, or in other words, the equitable assignee has priority over the person serving the garnishee order.”

Can a Bank Joint Names Savings Account be garnished / di beku?

Back to the topic content as above.
 
There “was” one post in this forum by an ex-senior forumer that merely states that “Joint Names Accounts cannot be Garnished” with a caselaw provided (case long time ago) but with no proper interpretation as to the Judge’s Verdict.

My personal research and interpretation is that :

Bank Joint Names can be GARNISHED  based on my recent researches on the following points –

1.    Every case has its peculiar set of facts, and whether the garnishee has priority over a third party, depends very much on the available facts :

2.    If the T&C (Bank) in the opening of the Joint Account allows “either party can make withdrawal”. This would constitute that the debtor has full authority over the management / operation of the said account.

3.    There were other caselaws (with peculiar set of facts), the most recent being months ago that a Joint Account can be garnished. We must understand that Joint Names Bank Accounts need not be under Husband/Wife/Chidren, it can be also under names of other relatives /friends /etc..etc..

The only exception  is to the fact it cannot be garnished is that when monthly salaries is banked into the Joint Account by the other name holder.
 
Salaries bank-in is Creditors Proof  by virtue of Employment Act 1955.
(This is also applies even for single name personal bank savings accounts)
 
The other exception (cannot garnish) is that for those “Held In-Trust” Joint Names Accounts for Parent/Child (below 18 years old). Unless it can be proven that the parent is using the child’s account for the purpose of avoiding settlement of their personal debts to his/her creditors.

This post is held in conjunction with the following current Query in this forum :

https://www.lawyerment.com/answers/questions/13966/kenapa-account-yg-kita-pilih-untuk-dibekukan-susah-untuk-dilepaskan

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answered on Mar 29, 2021 at 00:01
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edited Mar 29, 2021 at 00:12
by   jeff005
In a landmark decision, the High Court has recently held that a joint bank account may be garnished under Order 49 of the Rules of Court. Timing Limited vs Tay Toh Hin & Anor[2020]  SGHC 169.

Do note that :

Singapore judgment can be registered by the appellant in the Kuala Lumpur High Court under the Reciprocal Enforcement of Judgments Act 1958.
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answered on Mar 29, 2021 at 10:54
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edited Mar 29, 2021 at 11:01
by   jeff005
Excerpts from the NET :

Ref : https://www.thomasphilip.com.my/articles/registering-a-foreign-judgment-under-the-reciprocal-enforcement-of-judgments-act-1958/#:~:text=The%20Reciprocal%20Enforcement%20of%20Judgments%20Act%201958%20(%E2%80%9CREJA%201958%E2%80%9D,Lanka%2C%20India%20and%20Brunei%20Darussalam.

Registering a Foreign Judgment under The Reciprocal Enforcement of Judgments Act 1958

In Malaysia, foreign judgments may be enforced without the need to commence a fresh action. This is provided that the foreign judgment in question is granted by a ‘reciprocating country’. The courts in Malaysia are no stranger to recognizing principles based on this doctrine of international reciprocity. The Reciprocal Enforcement of Judgments Act 1958 (“REJA 1958”) is a specific statute enacted to provide the mechanism for how such judgments can be enforced here in Malaysia. The reciprocating countries stated under the Act are United Kingdom, Hong Kong, Singapore, New Zealand, Sri Lanka, India and Brunei Darussalam. This article provides in summary, the registration process of a foreign judgment and how such registration can thereafter be set aside by a judgment debtor. Procedurally, the rules governing this area of the law are contained in Order 67 of the Rules of Court 2012. The parties applying to register and set aside a foreign judgment are termed judgment creditor(s) and judgment debtor(s) respectively. 

Eligibility to register a foreign judgment (Section 3) 
Section 3(3) of REJA 1958 lays down the following criteria for a foreign judgment to be registered:
The judgment must be final between the parties;
The judgment must provide for a sum of money to be payable (excluding taxes, fines or any form of penalty); and
The judgment was pronounced by a court from one of the reciprocating countries set out above.

The registration process (Section 4)
The registration process which is ex parte in nature (meaning only the applicant is required to be present), is set out in Section 4 of REJA 1958. Section 4 is concerned only with the requirements for the registration of foreign judgments. In other words, provided the applicant / judgment creditor can satisfy the registering court that certain procedural conditions have been met, the judgment must be registered. It is a mandatory or mechanistic process much like the registration of adjudication or arbitration final awards.  Pursuant to Section 4(1) of the Act, the applicant / judgment creditor will have to satisfy the registering court that the foreign judgment:
Was issued or pronounced within 6 years prior by the original court;
Has not been satisfied in full by the judgment debtor;
Is capable of being enforced or executed in the original court.

Once registered, the judgment given by the High Court of Malaya will be treated as if it is a judgment given by the original court. Similarly, once a judgment of the original court is properly registered by the High Court of Malaya, that judgment will be accorded the same treatment as if it was a judgment given by the High Court of Malaya. Once the registration order is pronounced, a sealed copy of the said order accompanied by a notice of registration, must be served personally on the judgment debtor. The notice of registration must contain the following:

The particulars of the judgment and the registration order;
The name and address of the judgment creditor or his solicitor on whom any subsequent application to set aside by the judgment debtor may be served;
The right of the judgment debtor to set aside; and
The period within which such application to set aside the registration may be made.  

The period within which an application may be made by the judgment debtor to set aside the registration is usually 14 days from service of the registration order and the notice of registration. However, the court has discretion to extend such period on an application by the judgment debtor.
Applying to set aside the registration (Sections 5 & 6)

Upon service of the registration order and the notice of registration, a disgruntled judgment debtor may exercise his statutory right to set aside the registration under Section 5 of REJA 1958. Conventionally, the more popular grounds relied upon by judgment debtors turn on whether the requirements under Sections 3 & 4 have been met, the jurisdiction of the original court to hear the matter and whether the registration is contrary to the public policy of Malaysia.

Whether the requirements under Sections 3 or 4 have been met 
An application mounted under this limb is fairly limited in scope in that the judgment debtor will have to establish that the foreign judgment was registered in contravention of the Act. This involves showing that the registering court had mistakenly granted the registration order. In Standard Chartered Bank (Singapore) Ltd v Pioneer Smith (M) Sdn Bhd [2015] 7 CLJ 677 it was argued by the judgment debtor that the registration ought to be set aside as the requirements under Section 4(2) of the Act were not fulfilled in that the foreign judgment was purportedly not capable of being enforced in the original court. In dismissing the setting aside application, the Court held that the issue of whether the judgment creditor could as a matter of fact enforce the judgment by execution in the original court is a practical question, not a legal one. To hold otherwise would effectively allow judgment debtors and other losing parties to avoid enforcement actions against them by taking steps to cease their presence in the country of original court as well as at the same time have their assets transferred out of jurisdiction.

Whether the original court had jurisdiction to hear the matter
If the judgment debtor can show that the original court had no jurisdiction to try the matter, the registration will be set aside. In United Malayan Banking Corp v Khoo Boo Hor [1996] 1 SLR 359, the judgment creditors had obtained a default judgment in Malaysia against the judgment debtor. The judgment debtor was a Singaporean citizen who was a resident in Singapore who claimed that he did not submit to the jurisdiction of the Malaysian court. The judgment debtor thus applied to set aside the registration of the judgment in Singapore. In allowing the setting aside application, the Court held that the agreement to submit to the jurisdiction of the original court must be expressed and not implied in the circumstances of the case. Examples of express submission to jurisdiction are where the judgment debtor takes a step in proceedings in the original court, carries on a business or is ordinarily resident in that jurisdiction. 

Whether the judgment was obtained by fraud or is contrary to the public policy of Malaysia
The categories of cases under this limb are not closed. For instance, in the case of The Ritz Hotel Casino Ltd & Anor v. Datuk Seri Osu Hj Sukam [2005] 6 MLJ 760, it was ruled that the registration of a foreign judgment pursuant to REJA 1958 for a gambling debt was refused as to do so would amount to a contradiction of public policy in Malaysia. Further, a failure to observe the procedural rules of service, was found to be contrary to the public policy in Malaysia as this would akin to disregarding the sovereignty of a foreign country (United Overseas Bank Ltd v Wong Hai Ong [1999] 1 MLJ 474). 

To sum up, the principles underscoring the registration and subsequent setting aside of a foreign judgment in Malaysia under REJA are well settled. It is clear that any application to set aside the registration must fall within the four corners of Section 5 of the Act be it a challenge as to jurisdiction of the original court or whether the registration contravenes the public policy of the registering court. In all other cases where the judgment debtor wishes to challenge the merits of the judgment, the appropriate place to do so would be at the original court and not the registering court (International Factors Leasing Pte Ltd v Winds Cruises Pte Ltd & Ors [1999] 4 MLJ 165).

by Mavinthra Jothy Thillainathan ~ 26 March 2020
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