4. If I (as a judgment creditor) realise that someone owes money to the judgment debtor, can I get my money directly from that third party?
In such a case, garnishee proceedings may be considered.
Garnishee proceedings provide the simplest method of enforcement where the judgment debtor is himself the creditor of a third party. Through garnishee proceedings, the obligation of the third party to pay money to the judgment debtor is transformed into an obligation of the third party to pay the money directly to you (as the judgment creditor).
Garnishee proceedings is most commonly used to attach or freeze the sums of money which belong to the judgment debtor located in his bank account.
Where (i) you have obtained a judgment or order for the payment by the judgment debtor of a sum of money amounting in value to at least $1,000 , and (ii) any other person (i.e. the third party who is considered as "the garnishee") within Hong Kong is indebted to that judgment debtor, the court may order the garnishee to pay you the amount of any debt due or accruing due to the judgment debtor from the garnishee (or so much of it as is sufficient to satisfy that judgment or order), and the costs of the garnishee proceedings.
An application for a garnishing order must be made ex parte (without notifying the debtor) supported by an affidavit or affirmation:
- stating the name and the last known address of the judgment debtor;
- identifying the judgment or order to be enforced and stating the amount remaining unpaid under it at the time of the application for the garnishee order;
- stating that, to the best of your information or belief, the garnishee, (i.e. the person who owes a sum of money to the judgment debtor) who must also be named, is within Hong Kong and is indebted to the judgment debtor, and stating the sources of your information or the grounds for your belief; and
- stating, where the garnishee is a bank having more than one place of business, the name and address of the branch at which the judgment debtor's account is believed to be held or, if it be the case, that this information (about the debtor's account) is not known to you.
A garnishee order must at first be an order nisi. That is, an order directed to the garnishee instructing him to show cause (to give any reasons to object the application) why the debt claimed to be due or accruing from him to the judgment debtor should not be utilized to satisfy the judgment debt and the costs of the garnishee proceedings.
The order nisi specifies the time and place for further consideration of the matter, and in the meantime attaches the debt claimed to be due or accruing from the garnishee to the judgment debtor, or so much of it as may be specified in the order. (See Form No 72 in Appendix A of the Rules of the High Court or Form No 72 in Appendix A of the Rules of the District Court as appropriate.)
Unless the court otherwise directs, the garnishee order nisi must be served (delivered):
- on the garnishee by hand, at least 15 days before the day appointed thereby for the further consideration of the matter; and
- on the judgment debtor, at least 7 days after the order has been served on the garnishee and at least 7 days before the day appointed for the further consideration of the matter.
As from the service of the garnishee order nisi on the garnishee, the order binds in his hands any debt specified in the order or so much of it as may be so specified.
Where, on the further consideration of the matter, the garnishee does not attend the court hearing or does not dispute the debt due or claimed to be due from him to the judgment debtor, the court may make a garnishing order absolute (finalized order) against the garnishee. (See Form Nos. 73 and 74 in Appendix A of the Rules of the High Court or Form Nos. 73 and 74 in Appendix A of the Rules of the District Court as appropriate.) Upon granting of the garnishee order absolute, the garnishee should pay the amount specified in the garnishee order to the judgment creditor. The garnishee order absolute may be enforced in the same manner as any other order for the payment of money.
Where, on further consideration of the matter, the garnishee disputes liability to pay the debt due or claimed to be due from him to the judgment debtor, the court may have to examine the questions at issue in order to determine the liability of the garnishee.
If the garnishee has paid you the amount specified in the relevant garnishee order, he will be deemed to have settled his debt to the judgment debtor.