The burden of proof in garnishee proceedings lies with the garnishee to prove non-existence of debt owed to the judgment debtor.

Table of Content
1. the court outlines the legal implications in garnishee proceedings regarding debt attachment and burden of proof. (Para 1 , 2 , 5)
2. the appeal details the assertions of the garnishee regarding the obligation to prove non-existence of debt. (Para 3 , 12 , 13)
3. discussion on the discretionary powers of the court in evaluating garnishee claims and evidence. (Para 4 , 6 , 10 , 11)
4. final ruling on the garnishee's liability and procedural compliance requirements. (Para 8 , 9 , 14 , 15)

[1] The appellant/Garnishee appeal is against the decision of the learned trial judge who had after full trial in a garnishee proceeding held that the Garnishee is liable to pay the respondent/Garnishor the sum of RM3,179,014.47 etc; and ordered the garnishment order nisi to be made absolute.

[2] It is not in dispute that the learned trial judge had taken the position that the burden of proof to prove that there is no debt due or accruing to the judgment debtor (JD) lies with the Garnishee, notwithstanding the Garnishor did not provide any particulars on his belief. Such an approach may not be correct in law. (See Malaysian International Trading Corporation Sdn Bhd v. RHB Bank Berhad , 2016 MarsdenLR 1998 ). The learned trial judge to arrive at the proposition had relied on the following cases, namely: (i) Malaysian International Trading Corporation Sdn Bhd v. RHB Bank Berhad , ; (ii) DIG (Malaysia) Sdn Bhd v. Precise Solution Sdn Bhd; Jenama Evolusi Sdn Bhd (Garnishee); (iii) Pernas Trading Sdn Bhd v. Senali Construction Works Sdn Bhd & Anor; [1991] 3 CLJ 439.

[3] The learned counsel for the appellant asserts that the legal burden remained on the Garnishor and not the Garnishee in reliance of the Singapore Court of Appeal's decision in the case of The State-Owned Company Yugoimport SDPR v. Westacre Investments Inc [2016] 5 SLR 372.

[4] What is important to note in this case on the question as to whom the burden falls is that the learned trial judge had heard the evidence of both the parties and on the facts and evidence came to the conclusion that there is a debt due and owing. That is to say, the issue of burden has become academic. Whether there is a debt due or had accrued at times may be a debatable issue. However, O 49 itself gives the discretionary power to the judge to decide on the issue. The learned trial judge had written a speaking judgment to justify his conclusion. We do not wish to repeat the facts and the evidence as it had been dealt by the learned judge and reported as Ananda Kumar Krishnan v. Ng Chin Tai & Anor. This judgment must be read together with that judgment to appreciate our reasoning in the proper perspective.

Preliminary Jurisprudence On Order 49

[5]Order 49 is a recognised summary procedure for a judgment creditor (JC) to attach debt due or accruing but not due, owed to the JD by some other person often referred to as Garnishee. That is to say, if the Garnishee is obliged to pay the money to the JD, that sum can be attached by garnishee proceeding. It will relate to debts due or accrued. However, garnishee proceedings has been widely used to attach deposits and cash in bank accounts, etc as provided for in O 49 r 1(3), and such attachment procedure is quite straight forward in contrast to determining whether or not there is a debt due or accrued. The procedure set out in O 49 has been explained by His Lordship Suriyadi FCJ in Malaysian International Trading Corporation Sdn Bhd v. RHB Bank Berhad , 2016 MarsdenLR 1998 as follows:

"[33] Procedurally, garnishee proceedings begin with the filing of an ex parte notice of application, supported by an affidavit in Form 98 (O 49 r 2). The affidavit will identify the judgment or order to be enforced, the amount remaining unpaid under the judgment or order at the time of the application, with the garnishee identified, and the applicant stating his belief that the garnishee is within the jurisdiction and is indebted to the judgment debtor.

[34] At this stage,

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