Mohd. Azmi SCJ:

We allowed the appeal on 9 January 1989 and now give our reasons.

The respondent (plaintiff) sued the appellant (1st defendant) jointly and severally with Classy Homes Sdn. Bhd. (2nd defendant) for an alleged partnership debt of RM82,062.68 for materials supplied and work done in respect of millworks on two floors of the Shangrila Inn, Penang, under the terms of a sub-contract. On 29 June 1987, the date of the issue of writ, the respondent obtained by way of ex parte summons-in-chambers a Mareva Injunction against both the defendants to restrain them until further order from disposing of or otherwise dealing with monies or assets belonging to both or either of them not exceeding RM95,000 and from disposing of or otherwise dealing with the said assets or monies due to them from the main contractor- Sumitomo Construction Co. Ltd., to the extent of RM95,000. By notice of motion dated 6 July 1987, the appellant applied to set aside the ex parte Mareva Injunction and other consequential orders. The motion was heard on 4 January 1988 and was eventually dismissed on 22 February. Being dissatisfied, the appellant appealed with leave against the whole of the decision of the learned Judge.

The principal issue before us was whether the discretionary power to issue the ex parte Mareva Injunction had been properly exercised by the learned Judge. Two grounds were canvassed on behalf of the appellant. Firstly, it was argued that the respondent's claim had nothing to do with the appellant but concerned only the Classy Homes Sdn. Bhd. (2nd defendant). In its statement of defence dated 7 July 1987, the appellant denied that the respondent was its sub-contractor or its employee. It was averred that the appellant and the 2nd defendant did jointly tender for the project at the Hotel which was required by the main contractor to be done under one parcel, but the appellant separately carried out only the design part of the project. The appellant denied that it was at any time a partner of Classy Homes Sdn. Bhd. and therefore denied liability for the sum owed by the 2nd defendant to the respondent. It was contended that in fact the 2nd defendant still owed the appellant the sum of RM14,386.46 which the 2nd defendant had received from the main contractor. Clearly, the appellant's defence would be principally on the basis that the alleged debt due to the respondent was not a partnership debt but was incurred solely by the 2nd defendant on the ground that the appellant was never a partner of the 2nd defendant and as such it could not be held jointly and severally liable. There appeared to be no dispute to the appellant's contention that all monies payable under the sub-contract were paid by the main contractor to the 2nd defendant, and nor was there any challenge to the appellant's averment that money due to it already paid by the main contractor to the 2nd defendant had not been paid. The issue on the existence of the alleged partnership between the appellant and the 2nd defendant must of course be finally determined at the trial. But on the pleadings and affidavit evidence, it could not be said that the learned Judge was wrong in law or in fact in his findings that the respondent had established in his own words "a good arguable claim", and that the appellant had assets within jurisdiction.

Secondly, it was argued that the learned Judge erred in law and in fact in holding that there was a sufficient risk of the appellant's assets being dissipated before judgment. In the affidavit of Mr. Wong Koi sworn on 29 June 1987 in support of the ex parte application for Mareva Injunction, he deposed in para. 12 that:

My solicitors have carried out a search at the Registrar of Companies on 26 June 1987 and have ascertained that the 1st defendant has only a paid-up capital of RM60,000 and the 2nd defendant has a paid-up capital of RM50,000. The results of the search made are now shown to me and exhibited hereto marked "WK8". Both companies