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2021 MarsdenLR 2494
HIGH COURT MALAYA KUALA LUMPUR
BANK KERJASAMA RAKYAT (M) SDN BHD – Appellant
Versus
KOPERASI SERBAGUNA IMAN MALAYSIA SDN BHD; MAYBANK ISLAMIC BERHA.... – Respondent
[Application For Execution No: WA-37G-12-02/2020]
The court determined that the wage subsidy received by the judgment debtor could be garnished, as the debtor failed to prove that those funds were held in trust or belonged to others.
Headnote:(A) Rules of Court 2012 – Order 49 r 1(1) – Appeals against refusal to make garnishee orders absolute – Judgment creditor obtained judgment for RM317,836,534.74 against judgment debtor – Judgment creditor sought garnishee orders against banks for debts owed by them to judgment debtor, which was opposed by judgment debtor – Court allowed appeals, ruling that the funds can be garnished as no conditions bar it and judgment debtor failed to prove funds belonged to others. (Paras 3-6, 30-34)
Facts of the case: The judgment creditor obtained a judgment in January 2020 against the judgment debtor, which did not pay the demanded sum. It applied for garnishee orders against several banks to access debtor's funds.
Findings of Court: Orders absolute granted against the first and fifth garnishee after evaluating arguments regarding ownership of funds.
Issues: Ownership of garnished funds and conditions for their garnishment under applicable rules.
Ratio Decidendi: The court held that the judgment debtor failed to establish any legitimate claim to the funds in question, thus allowing the garnishment.
Result: Appeals allowed; orders nisi converted to orders absolute.
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JUDGMENT
[1] These are appeals by the judgment creditor/plaintiff against the following decisions:
(i) the learned Senior Assistant Registrar's ("SAR") decision in dismissing the judgment creditor's notice of application dated 14 February 2020 and in refusing to make an order absolute against the first garnishee, Maybank Islamic Bhd, that all the debts due or accruing due by the first garnishee to the judgment debtor be attached to answer a judgment dated 6 January 2020 obtained by the judgment creditor against the judgment debtor pursuant to the judgment entered in the Kuala Lumpur High Court in Civil Suit No: WA-22M-127-03-2019 ("the judgment"); and
(ii) the learned SAR's decision in dismissing the judgment creditor's notice of application dated 14 February 2020 and in refusing to make an order absolute against the fifth garnishee, AmBank Islamic Bhd, that all the debts due or accruing due by the fifth garnishee to the judgment debtor be attached to answer the judgment obtained by the judgment creditor against the judgment debtor pursuant to the judgment.
[2] After reading the affidavits together with written submissions filed for both the judgment creditor and the judgment debtor and listening to the oral submissions of counsels, I allowed both the appeals in encls 31 and 32 with costs of RM3,000 each to the judgment creditor. My grounds for the decision are stated below.
Background Facts
[3] On 6 January 2020 the judgment in favour of the judgment creditor was given pursuant to an application under O 14A of the Rules of 2012 (" ROC 2012") by this Court. It was adjudged that the judgment debtor should pay the judgment creditor a total sum of RM317,836,534.74 as at 28 February 2019 and costs on solicitor-client and full indemnity basis.
[4] The judgment creditor demanded for the payment of the judgment sum from the judgment debtor but this was not forthcoming. Thus on 14 February 2020, the judgment debtor filed a notice of application for a garnishee order against the six garnishees, who are six different banks, in order to attach all the debts due or accruing by the garnishees to the judgment debtor to answer the judgment. The garnishees are Maybank Islamic Bhd ("first garnishee"), CIMB Bank Bhd ("second garnishee"), Koperasi Co-opbank Pertama Malaysia Bhd ("third garnishee"), Bank Mualamat Malaysia Bhd ("fourth garnishee"), AmBank Islamic Bhd ("fifth garnishee") and AmBank Malaysia Bhd ("sixth garnishee"). The six garnishees are referred together as "the garnishees".
[5] On 9 June 2020, the judgment creditor obtained a garnishee order to show cause against the garnishees to disclose the information of all the judgment debtor's current accounts and/or saving accounts and/or fixed deposit accounts and accounts indebted to the judgment debtor. In response, the first garnishee by way of a letter dated 7 July 2020 confirmed that they are indebted to the judgment debtor for a sum of RM67,845.97 as at 26 June 2020 ("monies in first garnishee"). The fifth garnishee by way of a letter dated 24 July 2020 confirmed that they are indebted to the judgment debtor for a sum of RM22.278.22 as at 2 July 2020 ("monies in the fifth garnishee"). On 7 September 2020, the judgment creditor withdrew the application against the second, third, fourth and sixth garnishees. The judgment creditor only proceeded the garnishee proceedings against the first and fifth garnishees.
[6] The first and fifth garnishees did not object to the application by the judgment creditor. However, the judgment debtor objected to the judgment creditor's application to garnish the monies in the first and fifth garnishees. The judgment debtor contended that the monies in the first garnishee in Account No 562405612785 cannot be garnished as they are monies subsidised by the Government pursuant to the Pakej Ransangan Ekonomi Prihatin Rakyat ("Prihatin Package"). The judgment debtor also contended that the monies in the fifth garnishee cannot be garnished
