What is the effect of a finding that a garnishing order was misconceived?

British Columbia, Canada


The following excerpt is from Akker v. Naudi, 1995 CanLII 2560 (BC CA):

3 Mr. Justice Drake set aside the garnishing order as a result of finding that the plaintiff's action was misconceived. The transcript of his reasons is incomplete, but both counsel are in agreement that that which we have is an accurate transcript of that part of his reasons which were transcribed. What Mr. Justice Drake said was this: It may well be that this rule [and I interpolate here to say he was referring to the rule of Foss v. Harbottle] was not drawn to the attention of the Master. I do not know about that, but in any event, he was wrong in his decision, in my opinion, and there is no foundation for either of the two aspects of his judgment. The action was misconceived, it ought to be struck, and consequently the garnishing order proceedings would fall with it -- ab initio as it were. I suppose the appeal and cross appeal are allowed. In other words, he held that the personal plaintiff could not maintain the action.

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