Garnishee order may change if circumstances change

A garnishee order may be revoked in whole or in part if the circumstances of the alleged debtor changes or else if after prima facie investigation it is no longer necessary

A garnishee order may be revoked in whole or in part if the circumstances of the alleged debtor changes or else if after prima facie investigation it is no longer necessary. This was held in a decree delivered on 14 April 2020 in John Camilleri et -v- Luke Camenzuli. The First Hall of the Civil Courts was presided by Mr Justice Robert Mangion.

Camenzuli filed application asking the Court to revoke a garnishee order he was subject to.

Mr Justice Mangion pointed out that the Court is barred at this stage to enter into the merits of the case. The court is bound by Article 836 of the Code of Organisation and Civil Procedure, which lays down that this procedure should be carried out with urgency and in fact there are few formalities. The Court quoted from a previous judgement DOM Communications Limited -v- Office Group Limited, decided on 28 April 2015 by the First Hall of the Civil Courts, which held that the Article 836 does not allow the court to enter into the merits of the case, and it should decide the issues at hand on prima facie evidence. The merits of the case will be examined in detailed in a separate action. This procedure is a preliminary procedure.

Article 836(1)(f) reads:

“(f) if it is shown that in the circumstances it would be unreasonable to maintain in force the precautionary act in whole or in part, or that the precautionary act in whole or in part is no longer necessary or justifiable.”

In another judgement Lombard Bank plc -v- Dr Melvyn Mifsud et, decided on 20 April 2015 by the First Hall of the Civil Courts, held that the above article implies that if there is a change of circumstances, which would make the garnishee order unreasonable. This can be seen in the wording such as “maintain” and “no longer necessary”. Therefore, there could be a situation where the garnishee order could have been justified when first filed, but at a later stage it would be no longer required. In another judgement Steven Pace et -v- Paul Camilleri et, decided on 4 February 2016 by the First Hall of the Civil Courts, the Court held that the applicant has to prove that there was a change of circumstances. The fact that the action on the merits of the case would have been lost, does not mean that the garnishee order was vexatious when filed. However, if during the case, the circumstances of the alleged debtor would have changed then it would be justified to visit the need for this precautionary warrant.

In this particular case, Camenzuli showed that the garnishee order not only depleted his savings but his monthly income, since this is deposited into his bank account. He had over €1,000 per month in commitments and this was in danger. Mr Justice Mangion, held that he has to decide whether the garnishee order is any longer necessary or should be revoked in whole or in part. The Court pointed out that there is no evidence for one to file for a garnishee order. The Court rests on the oath taken by the creditor. Therefore, the alleged debtor’s situation could have been existed from day one. In these circumstances, the Court looked into whether the garnishee order is necessary and interpreted that there is no need to examine whether the alleged debtor’s circumstances have changed from when filed. The Court held that there is no need for the garnishee order to hit the alleged debtor’s monthly wages.

The Court then moved to revoke partly the garnishee order allowing Camenzuli to withdraw €2,765 per month from his bank account.

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