Seng San Bing v Peter Charles Smerling (BA-37G-104-07/2024)

AFFIN BANK BERHAD

ALLIANCE BANK MALAYSIA BERHAD

AMBANK (M) BERHAD

BANK OF AMERICA MALAYSIA BERHAD

BNP PARIBAS MALAYSIA BERHAD

CIMB BANK BERHAD

CIMB ISLAMIC BANK BERHAD

CITIBANK BERHAD

DEUTSCHE BANK (MALAYSIA) BERHAD

HONG LEONG BANK BERHAD

HSBC BANK MALAYSIA BERHAD

J.P MORGAN CHASE BANK BERHAD

MALAYAN BANKING BERHAD

OCBC BANK (MALAYSIA) BERHAD

PUBLIC BANK BERHAD

RHB BANK BERHAD

STANDARD CHARTERED BANK MALAYSIA BERHAD

UNITED OVERSEAS BANK (MALAYSIA) BERHAD (NO. SYARIKAT: 271809-K) …GARNISI-GARNISI JUDGMENT Introduction [1] The Applicant is a Judgment Creditor, having secured a judgment against the Respondent in 2023, thereby rendering the Defendant a Judgment Debtor. To enforce the said judgment, the Judgment Creditor initiated garnishee proceedings against the Judgment Debtor’s accounts in 18 banks, pursuant to Order 49 of the Rules of Court 2012. However, these efforts proved futile when the High Court at Shah Alam, in Suit BA-37G-104- 07/2024 (“Suit 104”), declined to grant the garnishee order absolute sought by the Plaintiff. [2] The present dispute specifically concerns the Judgment Creditor and the Sixth Garnishee. Having successfully resisted the Judgment Creditor’s application for a garnishee order absolute before the Shah Alam High Court in Suit 104, the Sixth Garnishee now faces a fresh challenge – an application before this Court by the Judgment Creditor in Enclosure 77, seeking a stay of the decision in Suit 104, pending appeal to the Court of Appeal. The Issues [3] At the heart of the matter lies the question of whether this Court has the power to stay the Shah Alam High Court’s refusal in Suit 104 to grant the garnishee order absolute. Put differently, the issue is whether a stay can be granted pursuant to a dismissal order. [4] This overarching issue gives rise to another interrelated question, provided the answer to the predominant issue is in the affirmative: whether there exist special circumstances to warrant the granting of a stay. The Respective Contentions [5] The Judgment Creditor highlighted the fact that his application has not been opposed by the Judgement Debtor. [6] The Judgment Creditor further pointed out that “from the day the garnishee order nisi was served upon the 6th Garnishee on 19.08.2024, it was only the 6th garnishee who was resisting the garnishee proceedings with the filing of affidavits and submission, when it should have been the JD”. According to the Judgment Creditor, by not resisting the garnishee proceedings, “the JD is sending his clear message to this … Court to allow his money in his CIMB Preferred Current Account … to be garnished”. [7] In support of his contention that a stay can be granted for a dismissal order, the Judgment Creditor relied on cases such as Prince Court Medical Centre Sdn Bhd v Germguard Technologies (M) Sdn Bhd [2016] AMEJ 1317; [2016] CLJU 517; [2016] 4 MLJ 1; [2016] 6 MLRA 251, Abdul Jalil bin Abdul Hamid & Ors v Ketua Pengarah Kesatuan Sekerja Malaysia & Ors [2003] 8 CLJ 8; [2004] 4 MLJ 582; [2003] 3 MLRH 474 and Mohd Afrizan Husain v Suruhanjaya Sekuriti Malaysia [2022] 2 AMR 607; [2022] 1 LNS 14; [2022] MLJU 8; [2022] 3 MLRH 43. [8] It was the Judgment Creditor’s contention that he is “entitled to a stay of the dismissal of the garnishee order nisi (Enclosure 14), which is equivalent to a stay of a setting aside of the garnishee order nisi”. [9] The Judgment Creditor also averred that “the 6th Garnishee, merely as financial intermediaries, does not have any right to object”. [10] On the requirement to establish special circumstances, the Judgment Creditor argued as follows:

Terdapat keadaan khas untuk menangguhkan Perintah Mahkamah Yang Mulia ini.

Tanpa Penangguhan, Pemiutang Penghakiman akan mengalami kerugian yang tidak dapat dipulihkan kerana Penghutang Penghakiman adalah warganegara Amerika tanpa status pemastautin tetap di Malaysia, dan pemegang akaun bersama juga merupakan warga asing yang turut tidak mempunyai status pemastautin tetap di Malaysia.

Wujud risiko sebenar pelesapan dan/atau pelesapan lanjut dana dalam Akaun CIMB Preferred No. 8006958930 yang akan menyebabkan prejudis yang serius terhadap Pemiutang Penghakiman.

Perintah Penangguhan diperlukan untuk mengekalkan status quo, dan sekiranya rayuan Pemiutang Penghakiman dibenarkan, Penghutang Penghakiman pada ketika itu akan mengosongkan jumlah dana yang tidak diketahui yang telah dibekukan sejak 19 Ogos 2024 dalam Akaun CIMB Preferred No. 8006958930, menjadikan rayuan Pemiutang Penghakiman sia-sia dan/atau akademik.

Penghutang Penghakiman dan Garnisi Ke-6 tidak akan mengalami sebarang prejudis sekiranya Penangguhan diberikan. [11] The essence of the Sixth Garnishee’s objection to Enclosure 77 is that a dismissal order does not constitute a judgment capable of execution and, as such, cannot be stayed. [12] In support of this position, the Sixth Garnishee has cited several authorities, including Anwar Yeo Abdullah v Malaysian Assurance Alliance Berhad [2014] 1 LNS 196; [2014] MLRHU 133, CIMB Islamic Bank Bhd v Wellcom Communications (NS) Sdn Bhd & Anor [2019] 4 CLJ 1; [2019] MLJU 148; [2019] 3 MLRA 206, Takakao Sakao (f) v Ng Pek Yuen (f) & Anor (No 3) [2010] 2 AMR 821; [2010] 1 CLJ 429; [2010] 2 MLJ 141, Muhammad Hilman bin Idham & Ors v Kerajaan Malaysia & Ors [2010] 6 AMR 555; [2011] 6 MLJ 575, and Ming Ann Holdings Sdn Bhd v Danaharta Urus Sdn

[13] The Sixth Garnishee’s position is that the High Court’s decision on 4 March 2025 in Suit 104, which declined to make the garnishee order nisi absolute at the further consideration stage, does not impose any enforceable obligation. As a result, it contended that no execution is required, and therefore, "there is nothing to stay." The Applicable Law and Principles [14] Enclosure 77 is premised on section 73 of the Courts of Judicature Act 1964 and Order 45 rule 11 of the Rules of Court, 2012. [15] Section 73 of the Courts of Judicature Act 1964 provides as follows: Appeal not to operate as stay of execution

An appeal shall not operate as a stay of execution or of proceedings under the decision appealed from unless the court below or the Court of Appeal so orders and no intermediate act or proceeding shall be invalidated except so far as the Court of Appeal may direct. [16] On the other hand, Order 45 rule 11 of the Rules of Court reads as follows: Matters occurring after judgment: Stay of execution (O. 45, r. 11)

Without prejudice to Order 47, rule 1, a party against whom a judgment has been given or an order made may apply to the Court for a stay of execution of the judgment or order or other relief on the ground of matters which have occurred since the date of the judgment or order, and the Court may by order grant such relief, and on such terms, as it thinks fit. Decision of this Court [17] The statutory provisions invoked by the Judgment Creditor — namely, section 73 of the Courts of Judicature Act 1964 and Order 45 rule 11 of the Rules of Court 2012 — are, in themselves, uncontroversial. [18] These provisions vest the court with the discretion to grant a stay of execution pending appeal. The well-established principle governing the exercise of this discretion is clear: an applicant must demonstrate the existence of special circumstances. [19] As articulated by the Federal Court in Kosma Palm Oil Mill Sdn Bhd & Ors v Koperasi Serbausaha Makmur Bhd [2003] 5 AMR 758; [2003] 4 CLJ 1; [2004] 1 MLJ 257; [2003] 1 MLRA 536, special circumstances may take various forms, with the most frequently cited being the risk that an appeal would be rendered nugatory if a stay were refused. [20] However, in the present application, the question of special circumstances arises only as a secondary issue. [21] The threshold question that must first be addressed is more fundamental, that is, whether a stay can, in principle, be granted against a dismissal order. [22] The Judgment Creditor relied on Order 45 rule 11 of the Rules of Court 2012, which empowers the court to grant a stay of execution. Notably, Order 45, titled "Enforcement of Judgments and Orders", is a general provision. [23] However, in the specific context of garnishee proceedings, which forms the subject of this application, Order 49 of the Rules of Court 2012 is silent on the issue of a stay. [24] This brings us to the core question: does the High Court’s dismissal of the Judgment Creditor’s application for a garnishee order absolute in Suit 104 constitute an order or judgment capable of execution? [25] As noted in paragraphs [7] and [12], both the Judgment Creditor and the Sixth Garnishee have relied on case law to support their respective positions, while also seeking to distinguish the authorities cited by the opposing party. [26] Upon careful consideration of the authorities, this Court finds that the High Court’s dismissal of the Judgment Creditor’s application for a garnishee order absolute in Suit 104 does not amount to an executable order or judgment under Order 45 of the Rules of Court 2012. Consequently, the question of granting a stay does not arise. [27] The Judgment Creditor did contend that, as the Judgment Debtor has chosen not to challenge the application, this should entitle him to a stay of the dismissal order in Suit 104. He also asserted that "the Sixth Garnishee, merely acting as a financial intermediary, has no right to object" (see paragraphs [8] and [9]). [28] This argument is misconceived. 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(s). In some instances, a “fourth party” may also be involved (see Order 49 rule 6). [29] Furthermore, the rights of garnishees are expressly preserved under Order 49 rules 3(1)(a) and 5 of the Rules of Court 2012. It is therefore incorrect for the Judgment Creditor to assert that the Sixth Garnishee "has no right to object." [30] While this Court acknowledges the difficulties the Judgment Creditor may face should he ultimately succeed on appeal, the application in Enclosure 77 is nevertheless dismissed with costs. [31] After considering the parties' submissions on costs, this Court orders the Judgment Creditor to pay costs of RM5,000 to the Sixth Garnishee. Dated: 1 May, 2025 sgd [CHOONG YEOW CHOY] Judicial Commissioner High Court of Malaya Shah Alam Counsel: Ooi Suan Kim and Boo Honn Chin for the Judgment Creditor (Messrs. O S Kim & Associates) Lau Kee Sern with Lim Pey Tsyr and Luqmanul Hakkim bin Roslan for the 6th Garnishee (Messrs. Kee Sern, Siu & Huey) Judgment Debtor – not present