SENG SAN BING v PETER CHARLES SMERLING PIHAK YANG DIGARNIS 1. ) AFFIN BANK BERHAD 2. ) ALLIANCE BANK MALAYSIA BERHAD 3. ) AMBANK (M) BERHAD 4. ) BANK OF AMERICA MALAYSIA BERHAD 5. ) BNP PARIBAS MALAYSIA BERHAD 6. ) CIMB BANK BERHAD 7. ) CIMB ISLAMIC BANK BERHAD 8. ) CITIBANK BERHAD 9. ) DEUTSCHE BANK (MALAYSIA) BERHAD 10. ) HONG LEONG BANK BERHAD 11. ) HSBC BANK MALAYSIA BERHAD 12. ) J.P. MORGAN CHASE BANK BERHAD 13. ) MALAYAN BANKING BERHAD 14. ) OCBC BANK (MALAYSIA) BERHAD 15. ) PUBLIC BANK...

Case Significance

Addresses whether a court may stay the dismissal of a garnishee order absolute pending appeal, and affirms the tripartite nature of Order 49 garnishee proceedings and the garnishee's expressly preserved right to object under Order 49 rules 3(1)(a) and 5.

This High Court (Shah Alam) decision concerns an application by a judgment creditor for a stay, in garnishee proceedings, of a dismissal order refusing a garnishee order absolute. The judgment creditor had secured a judgment against the judgment debtor and, to enforce it, had initiated garnishee proceedings against the judgment debtor's accounts in eighteen banks under Order 49 of the Rules of Court 2012. Those efforts did not succeed when the Shah Alam High Court declined to grant the garnishee order absolute sought. The present dispute concerned the judgment creditor and the sixth garnishee, one of the banks, against whom the judgment creditor now sought a stay of the dismissal decision pending appeal to the Court of Appeal.

The overarching question was whether the court had the power to stay the refusal to grant the garnishee order absolute — that is, whether a stay could be granted in respect of a dismissal order — and, if so, whether special circumstances existed to warrant a stay.

The court rejected the judgment creditor's contention that, because the judgment debtor had chosen not to challenge the application, the judgment creditor was entitled to a stay of the dismissal order, and it rejected the assertion that the sixth garnishee, as a financial intermediary, had no right to object. The court held that argument to be misconceived, explaining that garnishee proceedings under Order 49 of the Rules of Court 2012 are inherently tripartite, involving the judgment creditor, the judgment debtor and the intended garnishee, with a fourth party sometimes involved, and that the rights of garnishees are expressly preserved under Order 49 rules 3(1)(a) and 5, so that it was incorrect to assert that the sixth garnishee had no right to object. The judgment illustrates the tripartite nature of garnishee proceedings, the preserved rights of garnishees to be heard, and the questions surrounding the court's power to stay a dismissal of a garnishee order absolute.