Robert Tow v. Patricia Ngit Hoong Leong
Read the full judgment text of HCMC 89/1969 on BabelCite. This High Court CFI judgment.
1. This is an application by the judgment creditor to garnishee moneys deposited by the judgment debtor with the garnishee in respect of arrears of maintenance payments under an Order dated the 19th November, 1969. The sum claimed originally amounted to $7,717.30, of which sum a garnishee order absolute was made in respect of the sum of $2,669.30 on the 20th October, 1971 with the consent of the garnishee and the claim with regard to the balance was adjourned for argument.
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HCMC000089/1969 IN THE SUPREME COURT OF HONG KONG DIVORCE JURISDICTION ACTION NO. 89 OF 1969 -----------------
----------------- Coram: Mr. B.L. Jones, Assistant Registrar, in Chambers. Date of Judgment: 16th day of November, 1971. ----------------- DECISION ----------------- 1. This is an application by the judgment creditor to garnishee moneys deposited by the judgment debtor with the garnishee in respect of arrears of maintenance payments under an Order dated the 19th November, 1969. The sum claimed originally amounted to $7,717.30, of which sum a garnishee order absolute was made in respect of the sum of $2,669.30 on the 20th October, 1971 with the consent of the garnishee and the claim with regard to the balance was adjourned for argument. 2. The judgment debtor has a fixed deposit receipt for a period of three months with the garnishee amounting to $25,000.00 which matures on the 20th November 1971. 3. The judgment debtor is referred to in the Petition dated the 4th June 1969 as the Managing Director of Consolidated Far East Limited and exhibited to an affidavit of Mr. Lui Chun Kwan, a sub accountant of the garnishee Bank, is a current account of this company which at the 21st October 1971 was overdrawn in the sum of $22,437.69. When the order nisi was served on the 8th October 1971 the account was overdrawn to the extent of $21,900.50. 4. An overdraft agreement and a form of pledge were signed by the judgment debtor in favour of the garnishee on the 2nd September 1971 whereby the garnishee granted overdraft facilities in favour of Consolidated Far East Limited to an amount not exceeding at any one time $25,000.00. The garnishee maintains that these arrangements which formed part of one transaction amounted to an assignment by the judgment debtor of the fixed deposit to the garnishee. However it is clear that this transaction did not amount to an assignment but was an arrangement whereby the garnishee in consideration of the facilities granted to Consolidated Far East Limited was given the right to exercise complete control over all moneys, stocks, shares, securities, etc. held by the judgment creditor with the bank. I therefore agree with Mr. Mutimer that the garnishee has an equitable charge. 5. Various arguments were raised by Mr. Mutimer for the judgment debtor whose submission was supported by Mr. Heung for the garnishee and by Mr. Owan for the judgment creditor but I am of the opinion that the crux of the matter is whether it can be said that there is a debt owing and accruing due to the judgment debtor in respect of which the judgment creditor can immediately and effectually sue. It is essential that the relationship of creditor and debtor should exist between the judgment debtor and the garnishee. The test to apply is whether the judgment debtor could sue the garnishee for the amount and recover it in order that there can be an attachable debt. A judgment creditor cannot by means of attachment stand in a better position as regards the garnishee than the judgment debtor did 'he can only obtain what the judgment debtor could honestly give him'. 6. The fixed deposit is held by the garnishee as a security for the overdraft facilities granted to the Consolidated Far East Limited and such deposit will obviously not be repaid by the garnishee until the overdraft has been discharged. 7. I am, therefore, of the opinion that the judgment debtor would not be entitled to claim payment of the fixed deposit with the result that there is no debt owing or accruing due to the judgment debtor upon which the judgment creditor can immediately and effectually sue. 8. Further I am unable to accept the argument for the judgment creditor that she is entitled to garnishee the sum of $500 debited to the judgment debtor's own current account on the 8th October 1971 for the garnishee is entitled to exercise control over this account for the same reason. 9. Accordingly the garnishee order nisi dated the 6th October 1971 with regard to the balance due under the order will be discharged. 10. There will be no order as to costs. 11. Dated this the 16th day of November, 1971.
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