Garnishee Orders – The threshold for creditors to claim on joint bank accounts

Author: Patrick Tan and Adrian Sebastian Kohar

Introduction

  1. The Singapore High Court has in its recent judgment in the case of Timing Limited v Tay Toh Hin and another [2021] SGHC 5 (Timing Ltd v Tay Toh Hin) delivered on 11 Jan 2021, ruled that the provisional garnishee orders it earlier granted in this case should not be executed. This latest ruling affirms that there remains a high bar for invoking garnishee orders in respect of creditors’ claim on joint bank accounts.
  1. The parties had previously submitted a dispute over a loan agreement to arbitration, to which the arbitrator rendered an award in favour of the plaintiff. The plaintiff, Timing Ltd, in seeking to enforce the arbitral award against the defendant and his equity firm, applied for a garnishee order for Standard Chartered Bank (SCB) to show cause why the defendant’s four joint accounts with SCB should not be garnished.
  1. A show-cause hearing gives the respondents an opportunity to explain to the court why it should not grant the relief that is sought.
  1. The court ruled that the plaintiff had established a strong prima facie case that all the money in the joint account belonged to the judgment debtor under Order 49 (O 49) of the Rules of Court (ROC), and the plaintiff was granted a provisional garnishee order.

What is a garnishee order and what does it do

  1. A garnishee is a third party (e.g. bank) who owes the judgment debtor money/property; instead of paying the judgment debtor, the court orders the garnishee to pay the judgment creditor. A garnishee order is in essence an order to allow creditors to recover debts from third parties.

The High Court’s explanation for ruling that provisional garnishee orders should not be executed

Burden of proof

  1. The High Court considered the difference between a provisional garnishee order and a final garnishee order. It cautioned the importance of not overstating the effects of a provisional order. Once a provisional garnishee order is made, it is for the respondents to then rebut the appellant’s prima facie case, but this would apply merely to “evidential” burdens. In the show cause proceedings, the “legal” burden remains on the appellant to prove that the garnishee owes the respondent a debt.
  2. The High Court ultimately found that Timing Ltd failed to discharge this legal burden of proving that a final garnishee order should be granted. Justice Aedit explained that although Timing Ltd had managed to prove a strong prima facie case, this was merely at the “interlocutory stage”.

Presumption of advancement

  1. Firstly, the presumption of advancement is a legal presumption which may arise during transfers of money or other property, e.g. where a husband transfers property to his wife, in the absence of other evidence, the transfer will be presumed to be by way of gift.
  1. The High Court referred to the case of Chan Yuen Lan v See Fong Mun [2014] 3 SLR 1048 (“Chan Yuen Lan”) and ruled that the strength and nature of the relationship between Tay and his wife gave rise to a strong presumption of advancement. Additionally, the court held that the appellant failed to adduce satisfactory evidence to rebut this presumption.
  1. Justice Aedit mentioned that while Chan Yuen Lan was a case that dealt with the issue of jointly-owned real property, he saw no reason why the presumption of advancement could not apply to jointly-owned intangible property.

The current test applicable to determine if a final garnishee order should be ordered

  1. In light of the latest ruling, an applicant might be required to discharge his legal burden of proving a strong prima facie case twice— once for the provisional garnishee order (interlocutory) and another for the final garnishee order.
  1. The High Court cited Telecom Credit Inc v Star Commerce Pte Ltd [2017] SGHCR 3 (Telecom v Star), “ultimately, the court must be satisfied based on all the evidence put before it that a final garnishee order ought to be made.” This means, even after the applicant has proven a prima facie case, the respondent remains entitled to adduce evidence to rebut the applicant’s prima facie case.

Difference between joint accounts (intangible property) and joint tenancy (immovable property)

  1. With joint bank accounts, it is usually difficult for an applicant to show that all the money in a joint account belongs solely to the debtor and not the innocent joint account holders, especially when the other joint holders actively make transactions through the account, thus it is difficult for them to claim on such accounts.
  1. As for joint tenancy, two or more people own a property together, each with equal rights and obligations. Such a legal arrangement creates a right of survivorship such that if one owner dies, their interest in the property is directly passed on to the surviving party(s). Creditors are able to enforce judgments or orders by obtaining a Writ of Seizure and Sale (WSS) against the judgment’s debtor interest in a jointly-owned property regardless of whether such interest is held under joint tenancy.
  1. Previously, a judgment for the payment of money could not be enforced by way of a WSS against a judgment debtor’s interest in immovable property which is held under joint tenancy. However, the recent High Court decision in Peter Low LLC v Danial Patrick Higgins [2018] SGHC 59 (Peter Low v Higgins) has clarified that a joint tenant’s interest in immovable property is actually chargeable to a WSS. The court held that when a WSS is issued against a joint tenant’s interest in land, the joint tenancy is severed when the debtor’s interest is seized and this seizure occurs when the WSS is registered. Once there is severance in a property, it becomes held as a tenancy in common, i.e. each co-owner has an undivided share in the property. Accordingly, it would be reasonable to allow a judgment creditor to impose a charge on the judgment debtor’s interest as this interest has been alienated from the interest of the other joint tenant(s).

 

Implication and takeaways

  1. Indeed, as there remains a high threshold which creditors need to satisfy before they can claim on joint bank accounts, i.e. they need to prove that all the money in a joint account belongs solely to the debtor and not the other joint account holders, it would be difficult for creditors to enforce monetary judgments against joint accounts unless they are able to adduce cogent evidence to satisfy the threshold. The situation favours the debtor further when there is a presumption of advancement which the creditor would have to rebut for the sake of proving that the judgment debtor had sole beneficial ownership over the moneys in a joint account.

Written by: Patrick Tan and Adrian Sebastian Kohar

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