The garnishee order turns the debtor’s debtor into the creditor’s payer. It is the tool for a judgment debtor with wages, a bank account or customers, and the Act calls it attachment of debts.
The terms
“The debtor” means the person liable under an order of a Court for the recovery or payment of money or costs. “The garnishee” means a person from whom debts are owing or accruing to the debtor, and in respect of whom an order is made under Section 182(1).
The Magistrates’ Manual describes the process as the creditor stepping into the shoes of the judgment debtor with respect to moneys owing to him. The National Court’s version is described in what is a garnishee order and garnisheeing wages or a bank account; the District Court’s is simpler and older.
The order nisi
(1) A Court or Magistrate (a) on the ex parte application of a person who has obtained an order for the recovery or payment of money or costs; and (b) on proof by affidavit or otherwise that an order has been made and is still unsatisfied and to what amount; and (c) that another person is indebted to the debtor and is in the country, may order that all debts owing or accruing from that person to the debtor be attached to answer the order.
(2) In that order or by a subsequent order, the Court may order the garnishee to appear and show cause why he should not pay the creditor the debt due from him to the debtor, or so much as satisfies the order.
(3) The Court may refuse an order where, from the smallness of the amount or otherwise, the remedy would be worthless or vexatious.
The application is Form 59 with an affidavit. The Manual admits that section 182 is not clearly drafted, but reads it as requiring proof of an unsatisfied order and of a debt owed by a person in the country, whereupon the garnishee is called on to show cause. The order is made without notice to the debtor or the garnishee, which is what makes it effective.
Service binds the debt
(1) Service of a true copy of the order, or notice of it, on the garnishee in the manner the Court directs binds the debts in his hands. (2) Absent a direction, service is personal, or by leaving a copy with an apparent inmate aged 16 or over at the garnishee’s abode or place of business; (3) a place of business counts only if the garnishee is its master.
From the moment of service the garnishee pays the debtor at his peril: if he does, he can be made to pay again to the creditor. Section 189 gives him the corresponding protection: payment under the order, or execution levied on him, is a valid discharge as against the debtor even if the proceedings are later set aside.
If the garnishee does not dispute
If the garnishee does not (a) promptly pay to the Clerk the amount due from him to the debtor, or an amount equal to the order, and does not dispute the debt; or (b) appear on the order directing him to appear, the Court may order a warrant of execution to issue against him, without any previous writ or process, to levy the amount due from him.
Section 265(2) adds an incentive: a garnishee who pays into Court, five days before the return day, all debts due from him to the debtor, or enough to satisfy the judgment, is not liable for costs.
If the garnishee disputes the debt
Sections 185 and 186 provide that the Court may order an issue to be tried between the creditor and the garnishee, in any court in which the debtor could have sued the garnishee, and the party obtaining the order files the issue in that court, which tries it and enforces its determination. So if the garnishee says he owes nothing, the question is litigated as if the debtor had sued him, and if the amount exceeds the District Court’s limit the issue goes to the National Court. Where the garnishee says the money belongs to a third party or is subject to a lien, sections 187 and 188 let the Court call that person in and decide, or try, the competing claim, and bar it to the extent of the debt. See adverse claims.
Wages and bank accounts
| Garnishee | Points |
|---|---|
| Employer (wages) | Wages “accruing” are within s 182(1); the order should be limited so the debtor keeps enough to live on, and Constitution s 43 and the Employment Act’s protections of wages should be respected; the Court may fix a fortnightly deduction |
| Bank (account) | The bank is a debtor to its customer for the credit balance; serve the branch; a joint account raises a s 187 question |
| Customer or business owing the debtor | Identified through the oral examination under s 181; see examining the debtor |
| The State as garnishee | Section 13 of the Claims By and Against the State Act forbids attachment against the revenue of the State; a public servant’s wages cannot be attached by this route |
Records and costs
Section 190 requires the Clerk to keep a Debt Attachment Book of all attachments, open to copying on application. Section 191 makes the costs of the application discretionary and, unless otherwise directed, lets the creditor retain his costs out of the money recovered in priority to the debt. Regulation 42 requires the application for an order for oral examination in aid of attachment to be supported by an affidavit in Form 13.
The District Courts Act and Regulation are not on PacLII; both are on vLex (Act, Regulation).
Before relying on anything here, read the current text of the District Courts Act (Chapter 40) and check for later amendments. The Act is not on PacLII; the figures and time limits quoted in this series come from the consolidation to No 8 of 2000, and the District Courts (Amendment) Act 2009 changes some of them once it is brought into operation. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.