Back
2013 MarsdenLR 1553
HIGH COURT MALAYA KUALA LUMPUR
LEISURE FARM CORPORATION SDN BHD – Appellant
Versus
KABUSHIKI KAISHA NGU & ORS – Respondent
[Suit No: 22NCC-1074-07/2012]
A Mareva Injunction can be granted if the plaintiff demonstrates a good and arguable case and shows a real risk of asset dissipation by the defendant.
Headnote:(A) Mareva Injunction - Application for injunction to restrain the 2nd Defendant from dealing with assets pending trial - Requirements for granting Mareva Injunction include demonstrating a good and arguable case and evidence of risk of asset dissipation - Relevant case law includes Creative Furnishing Sdn Bhd v. Wong Koi; bias towards strong arguable case standard affirmed. (Paras 21, 23, 30)
(B) A good and arguable case involves a fair chance of obtaining judgment, challenging the adequacy of disclosures made in support of ex-parte orders - The Court emphasized the need for clear disclosure of material facts - Incomplete disclosures can undermine applications for injunctions. (Paras 21-22)
Facts of the case:
The Plaintiff, having entered a Memorandum of Understanding with the 1st Defendant regarding the sale of shares of the 2nd Defendant, sought to impose a Mareva Injunction to prevent asset dissipation after the 2nd Defendant engaged in a separate transaction with a 3rd Defendant involving significant funds. (Paras 4-11)
Findings of Court:
The Plaintiff proved a good and arguable case, establishing the risk of asset dissipation as funds were transferred from domestic accounts to an entity abroad, prompting the injunction's acceptance with minor amendments. (Paras 30)
Issues: Whether the Plaintiff demonstrated a good and arguable case for a Mareva Injunction and sufficient risk of asset dissipation.
Ratio Decidendi: The court affirmed the appropriateness of Mareva Injunction given the evidence of asset dissipation and the Plaintiff's established interest in the land involved in the transaction, requiring protection against potential asset removal.
Result: Application in Enclosure 72 allowed with costs; Enclosure 80 dismissed.
| Table of Content |
|---|
| 1. application for injunction orders. (Para 1 , 1 , 2 , 3) |
| 2. background facts of the plaintiff's claim. (Para 4 , 5 , 6 , 7 , 8 , 9 , 10 , 11 , 12 , 13) |
| 3. plaintiff's arguments concerning assets. (Para 14 , 15) |
| 4. 2nd defendant's arguments against ex-parte orders. (Para 16 , 17 , 18 , 19 , 20) |
[1] Enclosure 72 is the application of the Plaintiff for the following Orders:-
(1) That the 2nd Defendant whether by itself or its officers, servants or agents or otherwise howsoever be restrained by injunction until trial in this action or until further order from selling, disposing of, mortgaging, assigning or transferring, pledging or charging or diminishing or in any way howsoever dealing with any of the assets of the 2nd Defendant within the jurisdiction including but not limited to:-
(a) credit balances or balances up to a sum of RM7,840,800.00 in any account in the name of the 2nd Defendant (whether severally or jointly with any third parties) or in which the 2nd Defendant have an interest (in whatsoever capacity) with Malayan Banking Berhad, Johor Bahru City Square Branch, 108 Jalan Wong Ah Fook, 80000 Johor Bahru, or any other branch of the said Bank or in any other banks or financial institutions in Malaysia;
(b) fixed deposit accounts up to a sum of RM7,840,800.00 held by Malayan Banking Berhad or any other deposit accounts at the said branch or any other branch of the said Bank or in any other banks or financial institutions in Malaysia in the name of the 2nd Defendant (whether severally or jointly with any third parties) or in which the 2nd Defendant has a interest (in whatsoever capacity);
(c) nothing in this Order shall prevent Malayan Banking Berhad or any other banks or financial institutions from exercising any right of set-off it may have in respect of facilities afforded by it to the 2nd Defendant prior to the date of this Order;
(2) That the 2nd Defendant be ordered to provide full, complete and accurate accounts of the deposit sum of RM7,840,800.00 that was paid by the 3rd Defendant to the 2nd Defendant on 11 September 2012 in relation to the Sale and Purchase Agreement dated 11 September 2012 (3rd Defendant's SPA) for a portion of HSD 195059 PTD 59410 PTD 59409, Mukim of Pulai, District of Johor Bahru and to provide and disclose the details and particulars of all the recipients and/or transferees and/or persons (including their names, addresses and dates and the amounts received by the respective parties therein) who have received and/or benefited from either directly and/or indirectly the deposit sum of RM7,840,800.00 pursuant to the 3rd Defendant's SPA;
(3) That the 2nd Defendant do within seven (7) days from the service of this Order give a full account and disclosure of the funds of the 2nd Defendant held in accounts and fixed deposit accounts registered in the name of the 2nd Defendant or in the names of other third parties controlled or directed by the 2nd Defendant or otherwise howsoever and that such disclosure be made by the 2nd Defendant on oath by way of Affidavit to be filed in this Honourable Court;
(4) Alternatively, an Order that the 2nd Defendant deposit and or pay the sum up to the value of RM7,840,800.00 to an interest-bearing fixed deposit account held by the Court's appointed stakeholders pending the final disposal of this action, within 7 days from the date of the Order made herein.
Enclosure 80
[2] Enclosure 80 is the application by the 2nd Defendant pursuant to O 29 r 1 of the Rules of 2012, O 92 r 4 of the Rules of 2012 and/or the inherent powers of the Court for the following Orders:-
(1) that the following part of the Ex-Parte Mareva Order dated 22 February 2013 be set aside and/or suspended pending the disposal of the inter-partes hearing of the Plaintiff's Notice of Application dated 19 February 2013 ("Enclosure 72").
" AND IT IS FURTHER ORDERED that the 2nd Defendant do provide full, complete and accurate accounts of the deposit sum of RM7,840,800.00 that was paid by the 3rd Defen
