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2025 MarsdenLR 4965
HIGH COURT MALAYA KUALA LUMPUR
SIM KWANG KAI ADRIAN – Appellant
Versus
JOHNATHAN WONG FUTT PO – Respondent
[Suit No: WA-22NCC-544-08/2023]
A Mareva Injunction requires evidence of a good arguable case, assets within jurisdiction, and a real risk of asset dissipation, which the plaintiff failed to prove.
Headnote:(A) Mareva Injunction - Conditions for granting - A plaintiff must demonstrate a good arguable case, that the defendant has assets within jurisdiction, and a real risk of asset dissipation - The plaintiff failed to establish sufficient evidence of risk - Dismissal of Mareva Injunction Application with costs. (Paras 9, 23, 31)
(B) Good Arguable Case - Defined as a case more than barely capable of serious argument - Not necessarily requiring a better than 50% chance of success - Sufficient evidence presented by the plaintiff to meet this condition. (Paras 10, 12)
(C) Risk of Dissipation - Allegations of misdeeds must be beyond those leading to the suit - Mere allegations of misconduct do not suffice to demonstrate risk of asset dissipation. (Paras 24, 28)
Certainly. Based on the provided legal document, the key points are as follows:
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The court dismissed the Mareva Injunction application due to insufficient evidence of a real risk that the defendant would dissipate his assets (!) (!) (!) (!) (!) (!) (!) (!) (!) .
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To grant a Mareva Injunction, the plaintiff must demonstrate three conditions: a good arguable case, assets within the jurisdiction, and a real risk of asset dissipation (!) (!) (!) .
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The court found that the plaintiff established a good arguable case, supported by evidence of payments made to the defendant and some indication of a potential misappropriation (!) (!) (!) (!) (!) (!) (!) .
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The defendant owns assets within Malaysia, including a digital wallet and likely bank accounts, satisfying the requirement of assets within the jurisdiction (!) (!) .
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The court determined that the plaintiff failed to prove a genuine or solid risk that the defendant’s assets would be dissipated or removed before judgment. Allegations such as prior misconduct, criminal charges, bankruptcy, or misrepresentations were deemed insufficient to establish this risk (!) (!) (!) (!) (!) (!) (!) (!) (!) .
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The purpose of a Mareva Injunction is to prevent a defendant from dissipating assets to cheat a plaintiff out of proceeds if successful, not to prioritize assets or punish misconduct (!) (!) .
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The court emphasized that allegations of misconduct or prior misdeeds alone do not automatically demonstrate a risk of asset dissipation unless supported by solid evidence showing a real and immediate threat (!) (!) (!) .
In summary, the application for a Mareva Injunction was dismissed because the plaintiff did not sufficiently prove that there was a real risk of asset dissipation by the defendant, despite establishing the other conditions.
| Table of Content |
|---|
| 1. mareva injunction application overview (Para 1 , 2) |
| 2. plaintiff's claims and allegations (Para 3 , 4 , 5 , 6) |
| 3. plaintiff's request for injunction (Para 7 , 8) |
| 4. conditions for mareva injunction (Para 9 , 10 , 11 , 12) |
| 5. evidence of good arguable case (Para 13 , 14 , 15 , 16 , 17) |
| 6. assets within jurisdiction (Para 18 , 19 , 20 , 21) |
| 7. risk of dissipation of assets (Para 22 , 23 , 24 , 25 , 26 , 27 , 28 , 29) |
| 8. court's decision on mareva injunction (Para 30) |
A. Introduction
[1] The plaintiff in the main action filed an application for a Mareva Injunction against the defendant in the main action ("Mareva Injunction Application").
[2] The court dismissed the application, after finding insufficient evidence of a risk that the defendant will dissipate his assets.
B. Background Facts
[3] The plaintiff filed this claim to seek an amount of RM3,225,000.00, which the plaintiff claimed was misappropriated by the defendant.
[4] The plaintiff claimed he made payments totalling RM6,950,000.00 to the defendant, for the purpose of investments in various companies affiliated with Dato' Simon Cheong Hong Mun ("Dato' Simon"). The payments were made in cryptocurrency USDT, a form of cryptocurrency where the value of cryptocurrency is tethered and/or pegged to United States Dollars. The sums were transferred to the defendant's cryptocurrency wallet ("Defendant's Digital Wallet"), based on the understanding that the defendant will remit the sums to Dato' Simon, his agents and/or nominees.
[5] The plaintiff claimed that sometime in July 2023, he discovered from Dato' Simon that out of the RM6,950,000.00 he had paid to the defendant, the defendant had misappropriated and retained a sum of RM3,225,000.00.
[6] The defendant's main defence is that the parties were involved in money laundering transactions. He filed a counterclaim, seeking amongst others, an order for the plaintiff to show proof of his source of funds, and a declaration that the exchange of cryptocurrency into Ringgit Malaysia is illegal as it contravenes the Exchange Control Act 1953 and other relevant laws.
C. The Mareva Injunction Application
[7] By the Mareva Injunction Application, the plaintiff sought to restrain the defendant from:
a. removing from Malaysia any of his assets which are in Malaysia, up to the value of RM3,225,000.00; or
b. disposing or dealing with, or diminishing the value of any of his assets in or outside Malaysia, up to the value of RM3,225,000.00.
[8] The prohibition would apply to any credit balances, monies or cryptocurrency held in any financial institution or service provider, any shares in any company, and any real property.
D. Considerations And Findings
Conditions To Be Met To Grant A Mareva Injunction
[9] In examining the merits of the Mareva Injunction Application, I considered the conditions required to be met to grant a Mareva Injunction. These conditions, set out in S & F International Ltd v. Trans-Con Engineering Sdn Bhd [1984] 1 MLRA 505 ; ; [1985] CLJ (Rep) 280 and Creative Furnishing Sdn Bhd v. Wong Koi ; ; [1989] 1 CLJ (Rep) 22 , are as follows:
a. The plaintiff must have a good arguable case against the defendant;
b. The defendant must have assets within the jurisdiction; and
c. There is a real risk of that the assets will be dissipated or removed.
First Condition: A Good Arguable Case
[10] In considering the first condition, namely whether the plaintiff has a good arguable case against the defendant, I found the case of Biasamas Sdn Bhd & Ors v. Kan Yan Heng & Anor ; ; to be instructive. On the question of whether a good arguable case had been proven, the court of Appeal held as follows:
"What is a good arguable case is difficult to define. The respondents need not show that they have a case so strong as to warrant summary judgment nor even a strong prima facie case. It would generally be sufficient if the respondents can show on the evidence available, there is a fair chance that they will obtain judg
