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2025 MarsdenLR 1158
HIGH COURT MALAYA KUALA LUMPUR
MIMS CAREER SDN BHD – Appellant
Versus
ARMAND MIKHAYL YEOH ABDULLAH & ORS (ENCLS 3 & 41) – Respondent
[Civil Suit No: WA-22NCC-833-11/2024]
A post-judgment Mareva injunction requires evidence of real risk of asset dissipation, while pre-judgment injunctions need a good arguable case; this Application failed to meet the criteria, leading to dismissal.
Headnote:(A) Mareva Injunction - A post-judgment Mareva injunction is sought against Defendants to prevent asset dissipation linked to an existing judgment. Requirements differ significantly from pre-judgment Mareva injunctions, where asset preservation is necessary pending trial. (Paras 12, 13, 14, 16)
(B) Criteria for Mareva Injunctions - For post-judgment Mareva injunctions, the applicant must prove a real risk of asset dissipation to enforce an established judgment. In contrast, pre-judgment injunctions require a good arguable case, among other criteria. (Paras 13, 14, 22, 29)
(C) Balancing Convenience - The Plaintiff failed to demonstrate imminent risk of asset dissipation has hindered the application; the balance of convenience weighs against granting the Mareva injunction. (Paras 16, 44, 52)
(D) Fundamental Flaw - The Application attempts to seek post-judgment relief through a pre-judgment Mareva injunction, which is procedurally improper. (Paras 18, 20)
Facts of the case:
Plaintiff obtained an arbitral award enforced as a judgment against Defendants, discovering asset transfers during JDS proceedings. The Plaintiff seeks a Mareva injunction to prevent asset removal by the Defendants, which includes multiple relief requests concerning alleged fraudulent dispositions.
Findings of Court:
The court found the Plaintiff's Application did not satisfy the necessary criteria for a Mareva injunction, particularly demonstrating a risk of asset dissipation.
Issues: The core issues addressed include whether the application constitutes a post-judgment Mareva injunction and if the Plaintiff met the relevant criteria.
Ratio Decidendi: The court ruled the Application is flawed as it conflates post-judgment and pre-judgment aspects, ultimately dismissing the injunction request for lacking merit.
Result: The Application is dismissed with costs awarded to the Defendants.
| Table of Content |
|---|
| 1. plaintiff's application for mareva injunction. (Para 1 , 2 , 3 , 4 , 5 , 6) |
| 2. nature of the application debated. (Para 7 , 8 , 9 , 10 , 12) |
| 3. differences between pre- and post-judgment mareva injunctions. (Para 13 , 14 , 15 , 16) |
| 4. application's fundamental procedural flaw. (Para 18 , 19 , 20 , 21) |
| 5. analysis of good arguable case. (Para 22 , 23 , 24 , 25 , 26 , 27 , 28 , 29 , 30 , 31 , 32 , 33) |
| 6. discussion of risk of asset dissipation. (Para 34 , 35 , 36 , 37) |
| 7. assessment of plaintiff's claims on asset dissipation. (Para 38 , 39 , 40 , 41 , 42 , 43) |
| 8. balance of convenience considerations. (Para 44 , 45 , 46 , 47) |
| 9. concerns about the 4th defendant's situation. (Para 48 , 49 , 50 , 51) |
| 10. final decision dismissing the application. (Para 53) |
Introduction
[1] This is the Plaintiff's application in encl 3 for a Mareva injunction against the 1st to 4th Defendants ("this Application" or "Enclosure 3").
A] Salient Background Facts
[2] The parties are not in dispute regarding the essential factual background. The Plaintiff obtained an arbitral award against the 1st to 3rd Defendants ("Principal Defendants") on 16 March 2020 ("the Award"), which was subsequently enforced/registered as a judgment of the Court on 7 December 2021 ("Enforcement Judgment"). The Award has been affirmed through all levels of Court up to the Federal Court.
[3] Following registration of the Award, the Plaintiff sought to enforce the Enforcement Judgment against the Principal Defendants through Judgment Debtor Summons ("JDS") proceedings commenced on 26 May 2022. During the course of these JDS proceedings, it was discovered that the Principal Defendants had transferred assets to the 4th to 7th Defendants, with these transfers occurring largely before the Award was made in March 2020, and a few occurring after the Award but prior to its registration in December 2021. For instance, property for the 4th Defendant was purchased in June 2019, well before the Award was made.
[4] While the overall pattern of transfers involved the 4th to 7th Defendants and other recipients, the Plaintiff seeks to recover assets from all the Defendants (1st to 7th Defendants) through this fresh action (the present act), alleging fraudulent dispositions and constructive trusts, whilst simultaneously seeking Mareva injunctive relief against only the 1st to 4th Defendants.
B] The Plaintiff's Claim
[5] The reliefs the Plaintiff seeks against the Defendants in this action based on its Statement of Claim can be summarised as follows:
Against the 1st Defendant:
i) An account and inquiry regarding the disposition of RM29,266,690.68 from the 1st Defendant's Public Bank Account and all gifts, settlements, or inheritance allegedly made between 16 January 2018 and 16 March 2023.
ii) Declarations that recipients of such gifts hold them on constructive trust for the 1st Defendant.
iii) Orders for immediate payment of monetary gifts to the Plaintiff toward settlement of the Award (the Final Award) and Judgment Sum (the Enforcement Judgment incorporating the Award plus accumulated interest and costs), or alternatively declarations that such gifts be subject to execution.
Against the 2nd to 5th Defendants
i) Declarations that the transfer of property at No 25 Jalan 12/17, Petaling Jaya, Selangor to the 5th Defendant be declared void for fraudulent disposition and restored to the 2nd Defendant, with associated restoration costs borne by the 2nd and/or 5th Defendants.
ii) Alternatively, declarations that the 5th Defendant holds the said property on constructive trust for the Second Defendant.
iii) Declarations that the property be subject to execution for the Award and Judgment Sum.
Against the 2nd and 7th Defendants
i) Declarations that the transfer of the Pinggiran Golf Property at No 8 Pinggiran Golf, Saujana Resort, Shah Alam, Selangor to the 7th Defendant be declared void for fraudulent disposition and restored to the 2nd Defendant, with associated costs borne
