SINGAPORE Trends and Developments Contributed by: Swee Yen Koh, Joel Quek, Daniel Gaw and Chunlong Lin, WongPartnership
by making an application without notice to the enforcement respondent/the judgment debtor (the “ex parte stage”). • Second, after the attachment/garnishee order is granted and served, if there is any dispute thereon, a hearing with notice to all parties is held so that the court may adjudicate any objections or dis - putes as to the non-party’s/garnishee’s liability to the enforcement respondent/the judgment debtor (the “inter partes stage”). Further, in both regimes, parties’ cases are set out by way of affidavit evidence in the first instance, without the need for a full trial (at (62)). Despite these similarities, there remain some notable procedural differences between the two frameworks. By way of example, under the ROC 2021, it is the objector that must formally initiate the objection pro - cedure by first filing a Notice of Objection, followed by an application for an order to release the attached debt (at (72)). In contrast, under the ROC 2014, once a provisional garnishee order is granted and served, the court would convene a “show cause” hearing to determine whether the order should be made final. No formal application was required from the objector under that process (at (72)). Notwithstanding the procedural changes, the DJ con - firmed that the established principles regarding the burden of proof continued to remain applicable to pro - ceedings for the attachment of debts (at (69)). Specifi - cally, the enforcement applicant continues to bear the legal and evidential burden of proving the existence of the debt when its existence is contested (at (67) to (70)). In addressing this issue, the DJ also exam - ined a potential inconsistency with the earlier deci - sion of Art Ask Agency SL v Person(s) Unknown (2023) SGHCR 14 (“ Art Ask Agency ”), which placed the onus on the objector to provide a sufficient basis for their objection. The DJ clarified (at (76) to (80)) that Art Ask Agency was confined to situations where the exist - ence of the debt itself was undisputed, but there was disagreement on the facts as to whether the objector had a legal entitlement to retain the debt as a security deposit. By contrast, in DBS Trustee , the defendants challenged the very existence of the debt, asserting that it had already been paid by a third party on Lite
BB’s behalf. This distinction was crucial in delineating the respective burdens in each context. Another key issue considered was whether the court could order a full trial instead of resolving an attach - ment order application by summary judgment. In DBS Trustee , the DJ answered this question affirmatively, holding that the court has broad powers under Order 3, Rule 2 (2) of the ROC 2021 to order a trial where appropriate (at (102)). This ruling is significant as Order 22, Rule 10 of the ROC 2021 does not explicitly pro - vide for the option of a trial in lieu of summary determi - nation, unlike Order 49, Rule 5 of the ROC 2014, which makes it clear that the court may summarily determine the question at issue or order that any question nec - essary for determining the liability of the garnishee be tried. Regarding the circumstances under which the court may order a trial in attachment proceedings, the DJ identified a two-tiered threshold. The primary thresh - old requires the existence of an arguable defence both in fact and in law (at (104) to (105)). Upon satisfaction of this threshold, the court will proceed to the sec - ondary threshold, which comprises three additional criteria: • ordering a trial must be necessary to ensure justice is done or to prevent an abuse of process; • such an order must align with the overarching ide - als embedded in the ROC 2021; and • there must be no prohibition in law against ordering a trial in the particular case (at (106)). Under the previous framework, the judgment credi - tor must first establish a prima facie case – following which, the burden then shifted to the garnishee, who must demonstrate that there is a fair or reasonable probability that he has a real or bona fide defence. The court must be satisfied based on all the evidence put before it that the garnishee has a defence that is at least arguable or “not hopeless” before a trial may be ordered (see Telecom Credit Inc v Star Commerce Pte Ltd (2017) SGHCR 3 (“ Telecom Credit ”) at (5)). Bare assertions by the garnishee are not sufficient to establish that its defence is “not hopeless”. In Tele- com Credit , the court in ordering a trial was persuaded by the fact that the evidence presented by the parties
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