PEMIUTANG PENGHAKIMAN MOHD NORKASWADI BIN MD GHAZALI PENGHUTANG PENGHAKIMAN 1) TETUAN FIRDAUS TENGKU PUSPA & ASSOCIATES 2) TENGKU ANISPUSPA LAILY BINTI TENGKU ABDULLAH

PEMIUTANG PENGHAKIMAN MOHD NORKASWADI BIN MD GHAZALI PENGHUTANG PENGHAKIMAN 1) TETUAN FIRDAUS TENGKU PUSPA & ASSOCIATES 2) TENGKU ANISPUSPA LAILY BINTI TENGKU ABDULLAH

The court found on evidence (including the cheque issued from the clients' account and affidavits) that account 8006-735698 (RM402.07) was the judgment debtor's account and that account 8006-735486, although a clients' account, contained mixed funds and had been used by the judgment debtor for non-clients purposes; bank secrecy under s133 FSA 2013 did not prevent garnishment once the plaintiff proved entitlement; accordingly the garnishee order was made absolute as to both accounts to satisfy the judgment and costs were awarded to the judgment creditor.

Citation
DA-22NCVC-36-09/2017 (Mahkamah Tinggi)
Parties
Plaintiff (judgment Creditor): Mohd Norkaswadi bin Md Ghazali; Defendant (judgment Debtor): Tetuan Firdaus Tengku Puspa & Associates; Defendant (judgment Debtor): Tengku Anispuspa Laily binti Tengku Abdullah; Garnishee: CIMB Bank Berhad; Garnishee: Malayan Banking Berhad; Garnishee: Maybank Islamic Berhad; Garnishee: RHB Bank Berhad; Garnishee: Public Bank Berhad
Court
High Court
Jurisdiction
Malaysia
Judgment Date
3 May 2021
Case Number
DA-22NCVC-36-09/2017 (Mahkamah Tinggi)
Procedural Posture
Civil Judgment Enforcement Garnishee Application / Post Judgment Garnishee Application (application to Make Garnishee Order Absolute)
Outcome
Garnishee order made absolute against CIMB Bank Berhad in respect of account 8006-735698 (RM402.07) and account 8006-735486 (replacement of account 0301-0049448-058) to satisfy the High Court judgment dated 30.6.2020; costs awarded to judgment creditor.
Legal Topics
Garnishee Order, Clients' Account, Stakeholder Fiduciary Breach, Bank Secrecy (s133 FSA 2013), Identification of Beneficial Funds
Source Language
Malay/English
Civil Procedure Banking Law Trusts and Fiduciary Duty Enforcement of Judgment Garnishee Order Clients' Account Stakeholder Fiduciary Breach Bank Secrecy (s133 FSA 2013) +1 more

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Parties

Mohd Norkaswadi bin Md Ghazali

Plaintiff (judgment Creditor)

Tetuan Firdaus Tengku Puspa & Associates

Defendant (judgment Debtor)

Tengku Anispuspa Laily binti Tengku Abdullah

Defendant (judgment Debtor)

CIMB Bank Berhad

Garnishee

Malayan Banking Berhad

Garnishee

Maybank Islamic Berhad

Garnishee

RHB Bank Berhad

Garnishee

Public Bank Berhad

Garnishee

Procedural Posture

Civil Judgment Enforcement Garnishee Application / Post Judgment Garnishee Application (application to Make Garnishee Order Absolute)

Legal Issues

  1. 1 Whether a garnishee order can be made absolute against CIMB Bank Berhad in respect of specified accounts of the judgment debtor
  2. 2 Whether a clients' (clients' trust) account is garnishable where it contains mixed funds or has been used for non-clients' purposes
  3. 3 Whether Section 133(1) Financial Services Act 2013 prevents disclosure or garnishment absent court order

Ratio Decidendi

The court found on evidence (including the cheque issued from the clients' account and affidavits) that account 8006-735698 (RM402.07) was the judgment debtor's account and that account 8006-735486, although a clients' account, contained mixed funds and had been used by the judgment debtor for non-clients purposes; bank secrecy under s133 FSA 2013 did not prevent garnishment once the plaintiff proved entitlement; accordingly the garnishee order was made absolute as to both accounts to satisfy the judgment and costs were awarded to the judgment creditor.

Court Disposition

Garnishee order made absolute against CIMB Bank Berhad in respect of account 8006-735698 (RM402.07) and account 8006-735486 (replacement of account 0301-0049448-058) to satisfy the High Court judgment dated 30.6.2020; costs awarded to judgment creditor.

Orders

  • Garnishee order made absolute against CIMB Bank Berhad for accounts 8006-735698 and 8006-735486 to satisfy judgment dated 30.6.2020
  • Costs of RM5,000 awarded to the judgment creditor (subject to 4% alokatur)