this product is unavailable for purchase using a firm account, please log in with a personal account to make this purchase.

Garnish of debts in the Supreme Court

Feature Articles

Cite as: (2003) 77(6) LIJ, p.48

While the garnish of debt is common in the Magistrates' Court, proceedings to garnish or "attach" debt in the Supreme Court are now rare. Yet this process of satisfying judgment debts is effective and efficient.

By Dr Paul Vout and Michael Nolan

To garnish or attach a debt is to warn, by means of a “garnishee summons”, a third party or “garnishee” owing money to a judgment debtor[1] not to pay any money or do anything in relation to that debt other than for the benefit of the judgment creditor.[2] As Stawell CJ explained:

“A judgment creditor is enabled to obtain from persons indebted to his judgment debtor, who are called garnishees, payment of his debt, or as much of it as the garnishee had funds of the [judgment] debtor from which they could pay.”[3]

Service of a garnishee summons has three effects. First, it secures the debt owed by the garnishee to the judgment debtor for the benefit of the judgment creditor by creating an equitable charge over the debt.[4] Second, it operates as an injunction prohibiting the garnishee from dealing with the debt other than for the benefit of the judgment creditor. Third, once served on the judgment debtor,[5] it effectively removes the judgment debtor as a creditor to the garnishee, and thus as a party to the attachment proceedings, and substitutes the judgment creditor.

For the remainder of this article, the terms “attach” and “attachment” of a debt will be used instead of “garnish” in deference to the terminology of O.71 of the Supreme Court (General Civil Procedure) Rules 1996 (the Rules).

Who may apply for an attachment of debt in the supreme court?

Any person entitled to enforce a judgment or order for the payment of money (including a costs order only, which has been taxed), other than a judgment for the payment of money into court, may apply for an order for attachment of debt. Further, an assignee of the full judgment debt[6] and the personal representative of a deceased judgment creditor who has become a party to the proceeding under O.9.09 may also apply for an attachment order under O.71.[7]

What debts may be attached?

A debt may be attached under O.71 if it is due[8] or accruing[9] to the judgment debtor on the day an order for the filing and service of a garnishee summons is made, or becomes due between that day and the day the summons is to be heard.[10] Such debts include:

  • bank and building society accounts;[11]
  • compensation money which is due;[12]
  • garnishee’s judgment debt to the judgment debtor (including damages);[13]
  • money standing to the credit of the judgment debtor in court;[14]
  • rent which is due;[15]
  • an amount due on a promissory note;[16]
  • trust money, including money in the hands of an executor or administrator of an estate, but only after a discrete sum or “an account” has been stated which the trustee, executor or administrator has a duty to pay.[17]

Debt includes equitable as well as legal debts.[18]

Where the debt owed by the garnishee to the judgment debtor has not formed, as in the case of undistributed trust money, or is owed jointly to the judgment debtor and one or more others, as in a joint bank account, the debt is not attachable. In short, an attachable debt is one that is indivisibly and indisputably owed by the garnishee to the judgment debtor.

How do I obtain an order for the attachment of a debt?

Step 1. Ensure you have a final order from the Supreme Court. If it is a costs order only, the costs must be taxed.[19]

Step 2. Prepare an application with respect to a specific and identifiable debt that is due or accruing, or will or is likely to become due or accrue, from the garnishee to the judgment debtor per r71.02. Separate applications must be prepared and brought for each potential garnishee.[20]

The application must be supported by an affidavit showing that the judgment debt or order to pay is unsatisfied either wholly or to a stated extent, and that the debt is due or accruing, or will or is likely to become due or accrue to the judgment debtor from the garnishee, as the case may be.[21] In the latter case, the affidavit must give particulars identifying the transaction under which the debt will or is likely to become due or accrue and state the date or likely date that will happen.[22]

The affidavit may contain hearsay statements of fact based on information and belief if the grounds are set out.[23]

Step 3. Prepare a garnishee summons in the form of Form 71A of the Rules, inserting all the information required therein.[24]

Step 4. Apply to the Supreme Court under r71.04(1) for an order that a garnishee summons be filed and served on the garnishee. The application is ex parte before a master and may be done without notice to any person.[25]

Note that the order is discretionary. It may be refused if it would be inequitable to make the order,[26] if it would give undue preference to the judgment creditor where the judgment debtor is insolvent,[27] if there are reasonable grounds for suspicion that the debt is not owed to the judgment debtor or is trust money,[28] or because the amount of the debt is too small to have any real impact on the indebtedness of the judgment debtor to the judgment creditor.[29]

Step 5. Assuming the order is made, file and serve the garnishee summons and a copy of each affidavit supporting the application on the garnishee personally (not by regular or even registered mail) and on the judgment debtor not less than seven days before the day for hearing named in the summons.[30] If service is effected less than seven days before the hearing of the summons, application must be made to a master to put back the hearing date. If it is not possible to serve on the judgment debtor personally, application must be made to obtain leave to serve by registered or ordinary post on the last known address of the judgment debtor.

A garnishee summons cannot be served outside of Victoria.[31]

As mentioned above, the effect of service of the garnishee summons on the garnishee is to place the judgment debtor in the shoes of the judgment creditor vis-a-vis the debt owed by the garnishee, who is prohibited from dealing with the debt contrary to the interests of the judgment creditor, and to fix an equitable charge on the debt for the benefit of the judgment creditor. The summons, once served, is a final order against the judgment debtor, who is largely removed from the picture:[32] see Status of the Judgment Debtor below.

Step 6: On the hearing of the summons confirm for the master that all of the above procedural points have been complied with, and if possible, hand up an affidavit showing that the judgment debt remains to that day unsatisfied.

Step 7: On issue of the garnishee order, execution may be enforced in the same way as any other order for the payment of money.[33]

Status of the judgment debtor

Despite the requirement in the Rules that the judgment debtor be served personally with the garnishee summons, he or she is not a party to the application for the order of attachment of debt.[34] Authority even exists that the judgment creditor has no right to be heard on the application.[35] Nevertheless, the Court may inform itself from anyone whether or not the garnishee owes a debt to the judgment debtor, including from the judgment debtor.[36]

Trustees as debtors and garnishees

As mentioned above, money held by a trustee becomes a debt, thereby making the trustee a debtor and potential garnishee, only after a particular amount has been isolated as being payable to the judgment debtor. In In re Greenwood, Sutcliffe v Gledhill [1901] 1 Ch 887, Farwell J ruled that an annuity to a beneficiary/judgment debtor only became an attachable debt at the time each year that an annual payment was calculated and became payable. The annuity capital remained in trust and could not be attached. “You cannot say that a [trustee or executor is a debtor to his or her beneficiary] unless he has got in his hands money which is his duty to hand over to the cestui que trust; then of course he is a debtor and there is no difficulty in attaching such a debt under this order.”[37]

Conclusion

By an attachment of debt order, a judgment debtor’s debts become payable to your client absolutely. This occurs as soon as the garnishee summons is issued and served. As such, O.71 of the Rules can be an extremely useful tool for a successful litigant seeking to enforce a judgment debt or order. But follow the Rules.


DR PAUL VOUT is a member of the Victorian Bar, practising in equity and commercial matters, as well as in banking and finance law. He was a senior associate with Blake Dawson Waldron and was that firm’s first chief representative in China.

MICHAEL NOLAN is the principal of Michael R Nolan Solicitors, an experienced litigator and an accredited specialist in wills and estates. He is a member of the Law Institute’s Speakers Bureau, speaking mainly on the topic of probate and administration.

The authors wish to acknowledge their debt (which is not attachable) to Neil J Williams QC and his authoritative exposition of the operation and history of O.71 of the Supreme Court Rules in Civil Procedure – Victoria, LexisNexis Butterworths, looseleaf, 6071-6103.


[1] Defined in O.71.01(1) of the Supreme Court (General Civil Procedure) Rules 1996 (the Rules) as a person required by a judgment of the Supreme Court to pay money otherwise than into court.

[2] Any person entitled to enforce a judgment for the payment of money other than a judgment for the payment of money into court: r71.01(1).

[3] Watson v Morrow (1880) 6 VLR (L) 134 at 139.

[4] See Galbraith v Grimshaw and Baxter [1910] 1 KB 339 (CA), Farwell LJ at 343.

[5] As required by r71.07. Even this level of involvement of the judgment debtor, once the garnishee summons has been issued, was considered anomalous by Jacobs J in MG Charley Pty Ltd v FH Wells Pty Ltd; Bank of NSW Garnishee [1963] NSWR 22 at 23.

[6] Re Premier Permanent Building Land and Investment Association; Ex parte John Stewart (1890) 16 VLR 20; Bagley v Bagley; Ex parte Lee (1890) 16 VLR 8. The assignee of part only of a judgment debt cannot obtain an attachment order in relation to that part: see Forster v Baker [1910] 2 KB 636; [1908-1910] All ER Rep 554.

[7] Baynard v Simmons (1855) 24 LJQB 353 [119 ER 404].

[8] A debt which is both due and payable.

[9] A debt which is due but not immediately payable. See Clyne v Deputy Commissioner of Taxation (1981) 150 CLR 1, Mason J at 15.

[10] Rule 71.02. If the debt doesn’t become due until after the day an order for the filing and service of a garnishee summons is made, the hearing of the summons must be more than 30 days after that order is made: r71.04(4).

[11] Rule 71.03 – notwithstanding that a demand, notice, personal application, passbook or deposit receipt is required by the bank or building society as a condition of the account before money may be withdrawn: see generally Whelow v Bale (1884) 1 WN (NSW) 16.

[12] A mere offer of compensation, or an offer refused, will not constitute a debt for the purposes of attachment: see in relation to compensation for compulsory land acquisition Howell v Metropolitan Railway Co (1881) 19 ChD 508. In relation to offers made and rejected see Australian Joint Stock Bank v McRae (1887) 3 WN (NSW) 107.

[13] Synott v Woods (1891) 8 WN (NSW) 4. But not if that judgment is pending an appeal by the garnishee: see Hunt v Balfour [1928] VLR 488; an interlocutory judgment for damages to be assessed is not an attachable debt: Jones v Thompson (1858) 27 LJQB 234. A joint judgment against two or more persons will give rise to a debt due to any one of the judgment debtors which is attachable: see Miller v Mynn (1859) LJQB 324 [120 ER 1213]. Where judgment is entered against an executor, a debt owed to the executor in that capacity is attachable: Burton v Roberts (1860) 29 LJ Ex 484 [158 ER 39]; Fowler v Roberts (1860) 2 LT 368 [66 ER 95].

[14] Rule 71.13.

[15] Vacuum Oil Co Ltd v Ellis [1914] 1 KB 693.

[16] Pierce v Yarneburg (1900) 16 WN (NSW) 145. If payment is not due, the promissory note is not attachable unless it falls due after the day an order for the filing and service of a garnishee summons is made but before the date for the hearing on the summons (that is, where r71.02(b) applies): see David v Malouf (1908) 5 CLR 749.

[17] Meudell v Wason (1897) 23 VLR 176.

[18] Vernon v Perry [1962] VR 215, Dean J at 226.

[19] Widgery v Tepper (1877) 6 ChD 364.

[20] Royal Bank of Queensland v Gurtberg (1889) 3 QLJ 151.

[21] Rule 71.05(1).

[22] Rule 71.05(2).

[23] Rule 71.05(3).

[24] Rule 71.06(2).

[25] Rule 71.04(2).

[26] See for example Employers’ Liability Insurance Corp Ltd v Sedgwick, Collins & Co Ltd [1927] AC 95; [1926] All ER 388.

[27] Pritchard v Westminster Bank Ltd [1969] 1 All ER 999.

[28] Plunkett v Barclays Bank Ltd [1936] 2 KB 107; [1936] 1 All ER 653.

[29] In fact it may be considered an abuse of process to apply for an attachment of debt order for a small amount: see Cotter v Moran (1895) 21 VLR 108, Hodges J at 108.

[30] Rule 71.07(1).

[31] Rule 71.07(2).

[32] Ex parte Joselyn. In re Wait (1878) 8 ChD 327, Cotton LJ at 331.

[33] Rule 71.09(3).

[34] MG Charley, note 5 above.

[35] Edwards v Jones (1888) 14 VLR 224.

[36] Cairns v Walsh (1891) 17 VLR 44, Webb J at 49.

[37] Lindley LJ in Webb v Stenton 11 QBD 526, quoted in In re Greenwood, Sutcliffe v Gledhill [1901] 1 Ch 887 at 890.

Comments




Leave message



 
 Security code
 
LIV Social
Footer