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2021 MarsdenLR 718
HIGH COURT MALAYA MUAR
HENG CHEW LANG & ORS – Appellant
Versus
HENG CHOON WAH & ORS – Respondent
[Civil Suit No: JB-22NCVC-64-09-2019]
Court emphasized the critical need for a plaintiff to demonstrate a good arguable case and the risk of asset dissipation for granting a Mareva injunction.
Headnote:(A) Courts of Judicature Act, 1964 – Section 25(2) – Mareva Injunction – Granting of Mareva injunction to prevent defendant from dissipating assets pending trial – Plaintiff succeeded in showing a good arguable case, existence of assets within jurisdiction, and risk of asset dissipation before judgment – Court emphasized importance of thorough disclosure of facts. (Paras 31, 40, 49)
Facts of the case: Plaintiffs, coerced into signing Power of Attorney documents under threat from the 1st Defendant, sought a Mareva injunction to prevent disposal of assets valued at RM1,713,400-00 while legal actions were pending. (Paras 5-8, 46)
Findings of Court: Plaintiffs fulfilled criteria for Mareva injunction as laid out in precedent cases, with sufficient evidence of potential asset dissipation. (Paras 49-68)
Issues: The court addressed whether all requirements for a Mareva injunction were met and if a guarantee for damages was necessary. (Paras 39-40)
Ratio Decidendi: Mareva injunctions are not granted lightly; requirements include showing a good arguable case, presence of assets, and risk of dissipation. Court must ensure considerations don't unjustly hinder plaintiffs while balancing potential harm to defendants. (Paras 15-18, 49)
Result: Orders for Mareva injunction granted to prevent disposal of assets until the conclusion of the main suit. (Paras 69)
JUDGMENT
(ENCLOSURE 22)
Introduction
[1] This is an application for Mareva injunction pursuant to encl 22 prayers (2) and (3) which reads as follows:
1. The 1st Defendant, whether through himself, his representative, servant, agent, worker or anyone of them or in whatsoever manner, that an injunction is granted against the 1st Defendant, until the final decision is given in this Suit, from taking out, disposing off, transferring, charging, dealing with, reducing the value or otherwise or in any way handling any of the assets (whether movable or immovable) in Bank Accounts and/or any money amounting to the value RM1,713,400-00 including but not limited to the assets that are listed in the Annexure A which is exhibited together with this Notice of Application.
2. 1st Defendant and/or any third party is ordered to surrender any assets in their possession (movable or immovable), Bank Account and/or money whether in the name of the 1st Defendant or otherwise and whether owned personally or jointly, that an injunction be granted until the final decision is given in this Suit, from taking out, disposing off, transferring, charging, dealing with, reducing the value or otherwise or in anyway handling any of the assets (whether movable or immovable) in Bank Accounts and/or any money amounting to the value RM1,713,400-00.
[2] The Learned Counsel for the Defendant has conceded in prayers (1) and (8) and the Court has made the appropriate orders.
The Background Facts
[3] The 1st Plaintiff is a Malaysian citizen, of full age and stays at Blk 171, #08-501, Ang Mo Kio, Ave 4 Singapore 560171. The 2nd and 3rd Plaintiffs are daughters of the 1st Plaintiff. The 1st Defendant is the younger brother of the 1st Plaintiff and uncle to the 2nd and 3rd Plaintiffs. The 2nd Defendant is the sister of the 1st Plaintiff and the aunty to the 2nd and 3rd Plaintiffs.
[4] The 1st Plaintiff is the registered owner of some of the properties listed in the Statement of Claim. The 2nd and 3rd Plaintiffs are registered owners of the balance of the properties listed in the Statement of Claim.
[5] The Plaintiffs claimed they were threatened and/or coerced by the 1st Defendant into signing the papers/documents to enable the 1st Defendant to sell the properties as listed in the Statement of Claim.
[6] Out of fear and/or for fear of their safeties, all the Plaintiffs signed the papers/documents for the transfer of titles of the properties.
[7] On or around August 2019, the Plaintiffs heard news that the 1st Defendant wish to disposed of the properties. Through the search made at the Land Office, the Plaintiffs discovered that the documents they were compelled to sign were all Power of Attorneys that gave absolute powers to the 1st Defendant to deal with the properties in any way that he pleases.
[8] The Plaintiffs further alleged that they never sign/execute any document before any person by the name of Goh Tay Hock because:
a. They never met him as they were all in Singapore on the purported date and time that the documents were purportedly executed.
b. The 1st Defendant brought the documents to be executed/signed in Singapore while the said Goh Tay Hock is in Malaysia.
c. The Plaintiffs have never been explained on the Powers of Attorney ("PA") and they never intended to give the said PAs to the Defendants.
d. There was no valuable consideration for the PAs to be given.
e. The PAs were purportedly created but they are contrary to ss 3 and 7, Power of Attorney Act 1949.
[9] No police report was lodged because the Plaintiffs were afraid for their safety and after 2 years they felt confident enough to initiate legal action.
[10] The 1st Defendant transferred 1/3 of the property (which held under the title HS(D) [5381] PTD 5321 Grisek Sub District, District of Ledang, Johore) to himself vide Presentation No 914/2017 and 1/6 of the same property the 2nd Defendant before charging the balance to the 3rd Defendant for the sum of RM133,400-00.
[11] The Plaintiffs w
