A Quick Guide To Garnishee Orders Absolute & Nisi In Malaysia
Garnishee orders nisi and absolute form part of overall garnishee proceedings under Order 49 of the Rules of Court 2012 which allow a creditor to directly collect funds owed to a debtor by a third party known as a garnishee.
An order nisi is issued first to temporarily freeze the relevant funds and require the garnishee and debtor to attend court, disclose information about the funds, and - if they want to - raise objections to them being garnished.
An order absolute is issued later and is the order that ultimately allows the creditor to recover the garnished funds from the third party known as a garnishee.
In simple terms it goes: Order nisi → service & funds frozen → court hearing → order absolute → funds paid to the creditor
If that is all you wanted, we hope this quick guide has helped!
But to creditors in Malaysia considering a garnishee order against a debtor, we advise reading on as we explain:
obtaining a garnishee order nisi
going from an order nisi to an order absolute, and
potential barriers along the way
Of course, feel free to skip the reading and get in touch for a free case assessment.
Otherwise, let’s begin.
Obtaining a garnishee order nisi
This is done through an ex parte application (without notifying the judgment debtor) supported by an affidavit setting out relevant facts including the basis for believing a third party holds money belonging to the debtor.
This means homework - an order nisi has the power to lock up funds and drag third parties into proceedings, so there should be sufficient grounds to identify them as a likely garnishee.
If it is a bank, you generally don’t need the debtor’s exact account number or branch, but there should be some evidence like:
previous payments made by the debtor from the relevant bank account
bank details provided by the debtor during the parties’ dealings
cheques or bank transfer records
invoices or other documents containing the debtor’s banking information
correspondence or other evidence linking the debtor to the particular bank
If the court is satisfied, it may issue an order nisi which should be served on the garnishee and debtor as soon as possible.
From order nisi to order absolute
Once the order nisi is served on the garnishee and judgment debtor, the relevant funds are temporarily frozen while the matter proceeds to a hearing where:
the garnishee discloses details about the funds it holds for the debtor, and may object to the garnishment if it wants to
the judgment debtor may raise objections to the garnishment if they want to
your lawyer responds to any objections and makes the case for the order to be made absolute
If there are no valid objections, and the court is satisfied that the funds can properly be garnished, the court may make the order absolute.
The absolute order then directs the garnishee to pay the relevant funds to the judgment creditor, up to the amount covered by the judgment and the order.
Of course, things may not always go this smoothly!
Potential objections, delays and stays
Often, when there is a strong case, the debtor will concede and allow the garnishment to proceed, but if you glance over at them and they look like this…
…don’t be surprised if they throw a wrench in the works!
From a creditor’s perspective, there are several ways the debtor, garnishee, or third party can delay or halt a garnishee order nisi from being made absolute.
Issue | How it affects recovery |
Garnishee disputes liability | The garnishee may say that it does not actually owe or hold money for the judgment debtor. |
Someone else claims the money | A third party (including the garnishee) may claim that they are legally entitled to the funds. |
Debtor or garnishee applies to set aside the order | Because the order nisi is obtained ex parte, an affected party can apply to have it set aside, especially if they can show procedural issues. |
The debtor appeals | An appeal does not automatically stop enforcement. However, the debtor can separately apply for a stay of execution, and if granted, this can suspend or interfere with the garnishee proceedings and delay recovery. |
Where the court cannot simply determine a dispute over the garnishee’s liability or a third party’s claim, it may order a separate trial to resolve the issue.
This is why we emphasise homework before applying for a garnishee order!
The more you know about the debtor, proposed garnishee and funds involved, the less likely you are to encounter an unexpected surprise that delays or derails the process.
In our experience, the most ideal cases involve garnishing a bank account where the bank has no competing interest in the funds. They have no reason to object, want to get the matter over with, and typically release the money with no issue.
So go digging through your old bank receipts and get back to us 🙂
Garnish your debtor’s bank accounts with Rule & Co.
With a decade in legal debt recovery, Rule & Co. has supported creditors through countless garnishee proceedings against debtor bank accounts. We guide you through the process from start to finish, helping you understand your options, navigate the court process, and take necessary steps towards recovering what you are owed.
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