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2025 MarsdenLR 443
HIGH COURT MALAYA KUALA LUMPUR
MEGA MEISA SDN BHD – Appellant
Versus
INTRA ALLIANCE CONSULT SDN BHD – Respondent
[Civil Suit No: WA-22NCVC-199-03/2024]
A Mareva injunction requires a good arguable case, assets within jurisdiction, and a real risk of asset dissipation, which must be supported by evidence.
Headnote:(A) Mareva Injunction - Requirements for Grant - The plaintiff sought a Mareva injunction to restrain the defendant from dissipating assets valued at RM19,755,000.00 - The court outlined the necessary elements: a good arguable case, assets within jurisdiction, and a real risk of dissipation (Paras 8-12).
(B) Good Arguable Case - A good arguable case is one that is more than barely capable of serious argument, requiring a fair chance of success (Paras 9-10).
(C) Risk of Dissipation - The court found that mere delay in payments does not establish a real risk of asset dissipation, especially in light of ongoing projects and financing (Paras 12-14).
Facts of the case:
The plaintiff owned land in Setapak, Kuala Lumpur, and sought payment from the defendant for a balance of RM19,755,000.00 after a sale agreement for a development project was breached (Paras 2-7).
Findings of Court:
The court concluded that the plaintiff failed to establish the grounds for a Mareva injunction, leading to the dismissal of the application (Paras 15).
Issues: The main issues included whether the plaintiff had a good arguable case, whether the defendant had assets within jurisdiction, and whether there was a real risk of asset dissipation (Paras 8-12).
Ratio Decidendi: The court ruled that the plaintiff did not demonstrate a real risk of asset dissipation based on the defendant's financial conduct and ongoing projects (Paras 12-14).
Result: Application for Mareva injunction dismissed.
JUDGMENT
(Enclosure 43)
Introduction
[1] This is the plaintiff's application for a Mareva injunction against the defendant. In the application, the plaintiff sought to restrain the defendant from dissipating its assets to the value of RM19,755,000.00. Although initially filed as an ex parte application, the parties have agreed to proceed with the application on an inter partes basis.
Brief Facts
[2] The plaintiff owns a piece of land in Setapak, Kuala Lumpur. Initially, the plaintiff and two others, namely Mohammad Azmi bin Daud ("Azmi") and Muhammad Arif bin Mohammad Azmi ("Arif") wanted to develop the land to build apartments for public officers. Azmi and Arif were the former shareholders of the defendant. The project was described as "Cadangan Pembangunan Perumahan Penjawat Awam 1 Malaysia (PPA1M)".
[3] Subsequently, the PPA1M project together with the land was sold to another party. The agreed purchase price was RM67,452,000.00. Out of that price, it was agreed that RM38,000,000.00 shall be the purchase consideration for the land and RM29,452,000.00 shall be the purchase consideration for the shares of the defendant.
[4] A sale and purchase agreement was signed in October 2017. Three days later, a supplementary agreement was executed by the parties. Approximately two months later, the memorandum of transfer in respect of the land was registered in the name of the defendant. Some six months later, the land was charged to MBSB Bank Berhad.
[5] According to the supplementary agreement, payment of the purchase price as originally agreed in the sale and purchase agreement was amended. Earlier, a deposit of RM2,000,000.00 was paid for the purchase of the land some three months prior to the signing of the sale and purchase agreement. The balance purchase price for the land in the sum of RM36,000,000.00 was supposed to be paid in two equal tranches of RM18,000,000.00 each. The first tranche was to be paid after the transfer of the land has been registered in the name of the defendant and the second tranche was to be paid within three months after the defendant obtained the housing developer's licence and the advertisement permit from the Ministry of Housing and Local Government.
[6] In December 2017, the land was transferred unto the name of the defendant. In December 2019, the defendant managed to secure the housing developer's licence and the advertisement permit from the Ministry of Housing and Local Government. However, the defendant did not keep its part of the bargain in terms of making payments of the balance purchase price in accordance with the agreed schedule.
[7] The plaintiff sued the defendant for the balance of the purchase price. As of the date the Writ was filed, the plaintiff alleges that the sum of RM19,755,000.00 remained outstanding.
Analysis And Findings
[8] In an application for the grant of a Mareva injunction, it is incumbent on the applicant to show:
(a) that the applicant has a good arguable case,
(b) that the defendant has assets within jurisdiction, and
(c) that there is a real risk of these assets being dissipated.
(See: Bank Bumiputra Malaysia Bhd & Anor v. Lorrain Esme Osman & Ors ).
Whether The Plaintiff Has A Good Arguable Case
[9] A good arguable case is one which is more than barely capable of serious argument but not necessarily one that the Judge believes has more than a fifty percent chance of success. (See: S & F International Ltd v. Trans-Con Engineering Sdn Bhd; [1985] CLJ (Rep) 280 ). That does not mean the plaintiff has to demonstrate a strong case as would warrant the grant of a summary judgment in its favour. What the plaintiff needs to explicate is a fair chance that the court will return a finding in its favour against the defendant. (See: Biasamas Sdn Bhd & Ors v. Kan Yan Heng & Anor; ; ).
[10] In pitching the defence against the plaintiff's claim, it is apparent that despite saying that full payment has been made the defendant had continued to make payments to the plaintiff
