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Magistrates' Courts (Amendment) Act 1995

TONGA

MAGISTRATES' COURTS (AMENDMENT) ACT 1995

No. 13 of 1995

I assent,

TAUFA'AHAU TUPOU IV,
14th November, 1995.

AN ACT

TO AMEND THE MAGISTRATE'S COURTS ACT

[10 October, 1995.]

BE IT ENACTED by the King and Legislative Assembly of Tonga in the Legislature of the Kingdom as follows:-

1. (1) This Act may be cited as the Magistrates' Courts (Amendment) Act 1995.

(2) The Magistrates' Courts Act, Chapter 11, as amended, is in this Act referred to as the Principal Act.

2. Section 56 of the Principal Act is amended by deleting the amount "$20" and substituting therefor the amount of "$500".

3. The Principal Act is amended by inserting after section 67, the following new section:

"67A. (1) A judgment or order for the payment of money other than an order for payment into Court, may be enforced by garnishee proceedings.

(2) Where -

(i) a judgment creditor has obtained a judgment or order for the payment by a judgment debtor (not being payment into Court) of a sum of money exceeding $100; and

(ii) some other person within the jurisdiction (in this rule referred to as "the Garnishee") owes money to the judgment debtor,

the Court may order the Garnishee to pay to the judgment creditor any sum (not exceeding the amount owed by the garnishee to the judgment debtor) in full or part satisfaction of the judgment debt and costs.

(3) An application for an order under paragraph (1) shall be made ex parte supported by an affidavit:

(i) stating the name and last known address of the judgment debtor;

(ii) identifying the judgment or order to be enforced and stating the amount unpaid;

(iii) stating that the Garnishee (naming him) is believed to be within the jurisdiction and to owe money to the judgment debtor, showing the grounds for such belief; and

(iv) where the Garnishee is a financial institution as defined by the National Reserve Bank of Tonga Act (Cap. 102), having more than one branch, stating at which branch the account is believed to be held.

(4) (a) An application under paragraph (2) shall be referred to a Magistrate who may make an order to show cause why the Garnishee should not pay the sum claimed and specifying a time and place for further consideration of the matter;

(b) An order to show cause shall be in Form 23;

(c) Unless the Court otherwise directs, the order to show cause shall be served on the Garnishee and the judgment debtor not less than 7 days before the day appointed for further consideration of the matter;

(d) An order to show cause shall bind the debt specified in the hands of the Garnishee as from the service of the order on him.

(5) A garnishee who admits that he owes the judgment debtor the amount specified or any lesser amount may pay that amount into Court.

(6) On further consideration of the matter -

(i) if the Garnishee does not attend or the Court is otherwise satisfied that he owes the judgment debtor the amount specified the Court may make an order absolute in Form 24;

(ii) if the Garnishee disputes that he owes the judgment debtor the amount claimed the Court may determine the matter summarily or order that it be tried and give any necessary directions therefore;

(iii) if it appears to the Court that some other person claims to be entitled to the debt sought to be attached, the Court may order that person to attend and give particulars of his claim, and may determine the matter summarily or order that it be tried and give any necessary directions therefor.

(7) Any payment made by a garnishee in compliance with an order absolute under this section shall be a valid discharge of his liability to the judgment debtor to the extent of amount paid, even if the garnishee order or the judgment or order on which it is founded is subsequently set aside or reversed.".

4. The Schedule to the Principal Act is amended by inserting the following new Forms immediately after Form 22.

"Form 23

Garnishee Order Nisi

(Section 67A (4))

Registry [state Registry in which issued]

BETWEEN

A. B. Judgment Creditor

And

C. D. Judgment Debtor

And

E. F. Garnishee

BEFORE Magistrate .................... in chambers

UPON READING the affidavit of ..................... filed the day of ...... 19...

IT IS ORDERED

1. That all debts or accruing due from the garnishee to the judgment debtor up to a sum of $................ be attached to satisfy -

(i) a judgment or order obtained by the judgment creditor in this Court on the ................ day of .............. 19......... on which judgment or order the sum of $ remains due and unpaid; and

(ii) $........ for the costs of these proceedings.

2. The garnishee do attend before Magistrate ............ in Chambers at ............... on the .............. day of .......... 19.......... at.............. am/pm

to show cause why the garnishee should not pay to the judgment creditor the debt due from the garnishee to the judgment debtor, or so much thereof as will satisfy the judgment or order and the costs of these proceedings.

[If the garnishee is a financial institution] [leave room for name of branch]. The judgment debtor's account is believed to be held at the branch of the garnishee; the account number is believed to be

Dated the .......................... day of .................... 19.... .

SEAL

Notes:

1. This order must be served on the garnishee and the judgment debtor.

2. This matter is governed by Section 67A of the Magistrates' Courts Act."

"Form 24
Garnishee Order Absolute
Section 67A

UPON HEARING
AND UPON READING the affidavit(s) of

and the order made the .................. day of ............... 19......... whereby it was ordered that all debts due or accruing due from the garnishee to the judgment debtor up to a sum of $................ be attached to satisfy

(1) a judgment or order obtained by the judgment creditor in this Court on the ............... day of ........... 19........., on which judgment or order the sum of $.............. remains due and unpaid; and

(2) $............... for the costs of these proceedings;

IT IS ORDERED that

[if the garnishee owes the judgment debtor more than the judgment debt]

(1) The garnishee do pay to the judgment creditor the sum of $..........to satisfy the judgment or order and the costs of these proceedings.

(2) The garnishee be entitled to retain from the balance owed to the judgment debtor the sum of $............. for his costs of this application

or

[if the garnishee owes the judgment debtor less than the judgment debt]

1. The garnishee (after deducting the sum of $.......... for his costs of this application) do pay to the judgment creditor the balance of the debt owed by him to the judgment debtor, namely $............ in part satisfaction of the judgment or order.

2. Out of the said sum of $........ the judgment creditor do retain $........ for his costs of this application and the balance of $............ be credited to the judgment debt.

Dated the..............day of..............19....

Magistrate"

Passed by the Legislative Assembly this 10th day of October, 1995.

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