SINGAPORE Trends and Developments Contributed by: Swee Yen Koh, Joel Quek, Daniel Gaw and Chunlong Lin, WongPartnership LLP
trial was ordered because the evidence required test - ing by cross-examination (at paragraphs 17–18) and there were assertions of bad faith (at paragraph 20). It is arguable that this requirement under the ROC 2014 finds expression in the first limb of the second - ary threshold under the ROC 2021 that a trial will only be ordered where “necessary to ensure that justice is done or to prevent an abuse of process”. In DBS Trustee , the court held that “circumstances may arise where a summary determination based only on affi - davit evidence would not be appropriate” and that the concern under the ROC 2014 that summary determi - nation is only appropriate where the defence is “hope - less” will “continue to apply” under the ROC 2021 (at paragraphs 108–109). The second and third limbs appear to be fresh require - ments. On the second limb, the court observed that “in many cases” the outcome will align with the pri - mary threshold, but “in certain unique circumstances” a holistic assessment of the Ideals may make it inap - propriate to order a trial even if there is an arguable defence – for example, “a low value case that involves an arguable (but relatively confined) question of fact” (at paragraphs 110–113). The third limb “does not pose an obstacle to the making of an order for trial” (at paragraph 115). In Mitsui E & S Power Systems Inc v Neptun Interna- tional Pte Ltd [2024], SGHCR 3 (“ Mitsui ”), the court provided guidance on attachable debts. The claim - ant obtained judgment and applied to attach monies in the defendant’s bank account. The bank objected, arguing that a CAD (Commercial Affairs Department) direction prohibiting dealings with the monies meant there were no “debts due or accruing due” when the notice of attachment was served, or alternatively that any debt was contingent. The court explained that O 22 of the ROC 2021 is a simplification of O 49 of the ROC 2014, with the law on attachment of debts in substance the same (at para - graph 18). Common law principles concerning O 49 r 1 (1) continue to apply (at paragraph 18). The Court observed that a debt is attachable where there is a present and existing obligation to pay a
sum of money, whether now or in the future, such that a creditor–debtor relationship exists between the enforcement respondent and the non-party (at para - graph 22). A contingent debt, by contrast, cannot be attached, as no obligation exists between the enforce - ment respondent and the non-party until and unless the contingency occurs (at paragraphs (23) to (24)). Accordingly, contingent debts cannot be garnished under O 49 of the ROC 2014, and remain equally incapable of attachment under O 22 of ROC 2021 (at paragraphs (23) to (24)). The court dismissed the bank’s application. The CAD direction merely prohibited the moneys from being dealt with; it did not extinguish the enforcement respondent’s legal entitlement (at paragraphs 39–40). The court also rejected the argument that the debt was contingent upon lifting of the CAD direction or the outcome of disposal proceedings. The debt already exists; while proceedings may result in the moneys being paid to someone else, an obligation exists now and the monies are not “merely hypothetical”. Drawing on O 22, r 13 of the ROC 2021, which allows an attachment to be maintained while the Sheriff is directed to take no further action, the court held the attachment in abeyance pending the lifting of the direction or the outcome of disposal proceedings, rather than releasing the moneys (at paragraphs 53–60). Critically, the Assistant Registrar (AR) distinguished between attachment and release. Although commonly understood as a single process, attachment proceed - ings may be analysed in two stages (at paragraphs 53–55). • Stage 1: attachment – where the court considers whether there is a present and existing obliga - tion owed by the non-party to the enforcement respondent which is capable of being attached. • Stage 2: release – where the attached monies are realised and paid over in satisfaction of the judg - ment debt. The CAD direction affected only the release stage – it did not render the moneys unattachable, but prevent -
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