Timing Ltd v Tay Toh Hin and another
Jurisdiction | Singapore |
Judge | Aedit Abdullah J |
Judgment Date | 11 January 2021 |
Neutral Citation | [2021] SGHC 5 |
Published date | 15 January 2021 |
Docket Number | Originating Summons No 1560 of 2019 (Registrar’s Appeal No 214 of 2020) |
Year | 2021 |
Hearing Date | 30 September 2020 |
Plaintiff Counsel | Koh Swee Yen, Lin Chunlong, Goh Mu Quan, and Dana Chang Kai Qi (WongPartnership LLP) |
Citation | [2021] SGHC 5 |
Defendant Counsel | Abraham Vergis SC and Lim Mingguan (Providence Law Asia LLC) |
Court | High Court (Singapore) |
Subject Matter | Joint accounts,Credit and Security,Remedies,Assignment and attachment of money held by bank,Garnishee orders,Banking |
This Registrar’s Appeal (“RA 214”) is an appeal against part of the decision by the Assistant Registrar in HC/SUM 1320/2020 (“SUM 1320”). SUM 1320 was the appellant’s application, pursuant to O 49 r 1 of the Rules of Court (Cap 322, R 5, 2014 Ed) (“ROC”), for an order that,
In
In
The show cause order was duly served on SCB on 15 July 2020. On 20 July 2020, notice of the show cause order was given to Ms Tay through her counsel, Providence Law Asia LLC.
In a letter dated 24 July 2020, SCB informed Mr Tay that it had placed restrictions on the following amounts in the SCB accounts he held:
It appears that it was only after having had sight of SCB’s letter of 24 July 2020 that the appellant realised that only two of the four accounts Mr Tay held with SCB were joint accounts. In fact, two were accounts in Mr Tay’s own name. This was at odds with Mr Tay’s answers to the questionnaire in the examination of judgment debtor process (the “EJD process”), in which he had stated that all four accounts he held with SCB were joint accounts. I note that Mr Tay had also indicated at the EJD hearing on 19 June 2020 that his four accounts with SCB were joint accounts. At any rate, it appears that SCB’s letter of 24 July 2020 has since clarified this inaccuracy.
The hearing for the garnishee to show cause in SUM 1320 took place before an Assistant Registrar on 20 August 2020. Reply affidavits were filed by both Mr and Ms Tay prior to the hearing. At the hearing, both written and oral submissions were made. Judgment was reserved, and was eventually released on 1 September 2020.
The Decision BelowIn her decision, the Assistant Registrar ordered that a final garnishee order be granted in respect of the two SCB accounts in Mr Tay’s sole name. She dismissed the appellant’s application to garnish the moneys standing credit in the two joint accounts (the 4885 account and the 4259 account) because, in her view, the appellant had failed to show “on the balance of probabilities, that the beneficial ownership of the entire sum of money held in the SCB Joint Accounts was held by Mr Tay alone”. Rather, the Assistant Registrar accepted that the evidence given by Mr and Ms Tay in their reply affidavits was “direct evidence of the intentions of Mr Tay and Mrs Tay”, and that Mr Tay’s oral evidence at the EJD hearings was “inconclusive” and “equivocal” on the specific issue of the beneficial title to the moneys in the joint accounts.
The Assistant Registrar further held that there was no basis for finding that Mr and Ms Tay’s affidavit evidence was untrue. The documentary evidence did not contradict their accounts, nor were their assertions inherently improbable. While Mr Tay appears to have inaccurately claimed that all four SCB bank accounts were jointly held, the Assistant Registrar took the view that there was no evidence to suggest that Mr Tay was seeking to ring-fence assets from his creditors by transferring them into the joint accounts.
As outlined above, the appellant is only appealing against the Assistant Registrar’s decision to not grant a final garnishee order in relation to the 4885 account and the 4259 account.
Analysis The burden of proofThe first issue to be considered concerns the relevant burdens and standard of proof which apply in the instant context. The respondents rightly observe that the judgment creditor bears the burden of proving that there is a debt due or accruing from the garnishee to the judgment debtor, notwithstanding the granting of the provisional garnishee order, and that the judgment debtor in fact beneficially owns that debt. This is not controversial, and is the position adopted by the appellant as well. The parties diverge, however, on how the burden of proof should operate after the provisional garnishee order has been made.
The appellant argues that since a provisional garnishee order will only be made over joint accounts where there is a strong
In support of its position, the appellant points to two cases. In
… However, while Deuteron is merely defending the [judgment creditor]’s claim to the purported debt, the Other Parties are essentially asserting an ownership claim over that debt. Therefore, the question of whether the funds in Deuteron’s accounts with the Bank belonged beneficially to the Other Parties is really a tussle between the Other Parties and the [judgment creditor]. For this issue, I cannot accept that the [judgment creditor] bears the legal burden of proving that the funds are
not held on trust for the Other Parties. That would require the [judgment creditor] to prove a negative. If the counsel for the Other Parties is right, the logical conclusion is that a third party can establish its claim to the money without having to prove the claim on a balance of probabilities. Abona fide judgment creditor would have to constantly fend off a random array of third party claimants if all that these claimants have is an evidential burden.[Emphasis original].
On appeal, the Court of Appeal found that there was no need to discuss the issue of the third party’s burden of proof since the Other Parties did not appeal against Leow JC’s decision. That said, the Court of Appeal observed at [87] of
The second case the appellant relied on was that of
… I consider it useful to borrow from summary judgment principles to say that once a provisional garnishee order is granted, the judgment creditor must be taken to have established at least the
prima facie existence of the debt which places a tactical burden on the garnishee to contradict the judgment creditor’s case. It is of course then open to the judgment creditor to introduce evidence or raise arguments to undermine the garnishee’s defence but if, once all the evidence is in, the court is satisfied...
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