Friday, September 13, 2019

How Garnishee Proceedings Work

1. There must be a debt due or accruing due from the garnishee to the judgment debtor. What it does is essentially to make the Defendant's bank pay to you the debt that Defendant owes you (under banking law banks are your debtor/owe you money). See Order 49 of the Rules of Court.

2. The steps are generally a writ and SOC, and if no appearance is entered by the Defendant, proceed to get a judgment in default of appearance.Or, if the Defendant enters appearance, proceed to Summary Judgment (if straightforward case, no triable issues) / Trial, obtain Judgment against Defendant.

3. Once you get the Judgment, apply for Garnishee by Notice of Application and Affidavit.

4. Court will grant an Order with a date for the Garnishee to Show Cause.

5. Serve this on the Garnishee (ASAP) and the Defendant (7 days before Hearing of Order to Show Cause).

6. Garnishee (bank) will produce a statement saying how much is in the Defendant's account that can be garnished. Sometimes where the amount in the account is not enough to cover your Judgment sum, then you can only garnish the sum that is available and recover the rest due and owing through other modes of execution.

5. On the date to show cause, in the absence of Garnishee or Garnishee/Defendant has no objection, then court will grant a Garnishee Order Absolute.

6. If the Defendant opposes, then you can forward few reasons to Court why the Garnishee Order should be made absolute, for example:-

(a) Plaintiff obtained Judgment against Defendant, Plaintiff should not be barred from enjoying the fruits of litigation.
(b) Defendant did not appeal to the Judgment.
(d) There is debt due or accruing due from the Garnishee to the Defendant, and Garnishee has no objections whatsoever to release the amount sought to be garnished to the Plaintiff.

7. If Court grants Garnishee Order Absolute, serve the sealed Garnishee Order Absolute on the Garnishee bank and the Garnishee bank will pay the Plaintiff (or its solicitors) directly.





Wednesday, August 14, 2019

Civil Law (Amendment) Act 2019

The Civil Law (Amendment) Act 2019 was published in the Gazette on 31 May 2019. There are a few major changes to note:

1. Persons with disabilities - refer to meaning in Persons with Disabilities Act 2008. [1]

2. Previously, if a person has died caused by wrongful act (neglect or default), under s7(2) only parents, spouse and child can claim. Now, it includes "any person with disabilities under the care" of the deceased.

3. Previously, no loss of earnings (after death of person or after personal injury) shall be considered if his age exceeds 55. With the amendment, the age is increased to 60.

4. The upper limit of multiplier for loss of future earnings in a claim for damages (for both loss of dependency and personal injury) is increased to 60.

5. In relation to personal injury, good health before injury is NO LONGER a criteria of assessing loss of earnings, as long as he was working before death.

6. Bereavement is increased to RM30,000 - and now 'spouse', 'parents' and 'child' can claim (previously only spouse can claim if deceased was married, or parents can claim if deceased was under 18 and single).

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[1] “persons with disabilities” include those who have long term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society;