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2012 MarsdenLR 2118
HIGH COURT MALAYA SHAH ALAM
CMA CGM – Appellant
Versus
BAN HOE LEONG MARINE SUPPLIES SDN BHD & ORS – Respondent
[Civil Suit No: 22NCVC-404-0312012]
A plaintiff claiming fraud can secure injunctions despite admitted debts to defendants if they meet the threshold for showing potential asset dissipation and adequate grounds for claims.
Headnote:(A) Fraud and Conspiracy - Mareva Injunction - Anton Piller Order - Plaintiffs claim against defendants for fraud involving the delivery of marine fuel - Ex parte orders granted for Mareva and Anton Piller injunctions - Defendants' application to set aside these orders due to alleged material nondisclosure by plaintiff - Court found plaintiff had met the standard for injunctions despite defendants' claims of nondisclosure and oppression. (Paras 1-64)
(B) Material Nondisclosure - Court held the admitted debt of plaintiff to the defendants does not negate the validity of plaintiff's claims for fraud and conspiracy. (Paras 14-16)
(C) Security for Costs - Plaintiff ordered to furnish RM200,000 as security for costs due to being a foreign company with no local assets. (Para 63)
| Table of Content |
|---|
| 1. contractual relationship and basis for action against defendants (Para 1 , 2) |
| 2. ex parte orders granted and applications filed (Para 3 , 4 , 5 , 6 , 8 , 10) |
| 3. grounds for setting aside ex parte orders (Para 7 , 14 , 30 , 36 , 57) |
| 4. court ruling on affidavit significance. (Para 9) |
| 5. identity of plaintiff and affidavit validity. (Para 12 , 13) |
| 6. material non-disclosure by plaintiff. (Para 15 , 16 , 17 , 19) |
| 7. evidence regarding fuel supply. (Para 22 , 23 , 24 , 25) |
| 8. conditions for mareva and anton piller orders (Para 29 , 31 , 32) |
| 9. evidence destruction risk. (Para 34 , 35) |
| 10. execution of anton piller order. (Para 40 , 43 , 44 , 48) |
| 11. prohibitory injunction does not prevent lawful claims (Para 50 , 52) |
| 12. grounds for prohibitory injunction. (Para 51) |
| 13. bankers book orders and necessity for information (Para 53 , 54 , 59) |
| 14. bankers book order relevance. (Para 56) |
[1] The plaintiff, a shipping company, had a contract with the 1st defendant for the sale and supply of marine fuel (the said contract). The 2nd to the 5th defendants are the blockquoteectors of the 1st defendant and the 6th to the 12th defendants are the wholly owned subsidiaries of the 1st defendant. The 2nd to the 5th defendants, together with one Hean Boon Yeow are also the blockquoteectors for the 6th to the 12th defendants.
[2] The plaintiff filed an action against the defendants in the Kuala Lumpur High Court based on fraud, conspiracy to defraud and knowing assistance. The plaintiffs case is that the defendants have jointly and/or severally defrauded and conspired to defraud or had knowingly assisted to defraud the plaintiff to deliver marine fuel to the plaintiff for an amount less than what has been confirmed to have been delivered by the 1st defendant.
[3] Upon the plaintiffs application, on 28 March 2012 Justice VT Singham granted an ex parte orders against all the defendants for:
(i) Mareva injunction (encl 25);
(ii) Anton Piller order (encl 28); and against the 1st defendant only for;
(iii) Prohibitory order (encl 27);
(iv) The Bankers Book (Evidence) Act 1949 order (encl 26).
[4] After granting the above ex parte orders, Justice VT Singham ordered that the file be transferred to the High Court at Shah Alam.
[5] Before me are two enclosures. Enclosure 11 is the plaintiffs inter pane application for a prohibitory order, ie to restrain the 1st defendant, whether by themselves or by their agents and/or servants from giving effect to the terms and conditions of the said contract and from seizing and arresting any of the plaintiffs vessels and or cargos as security for any outstanding payments due and owing to, the 1st defendant under the said contract.
[6] Enclosure 32 is the defendants application to set aside the ex parte orders mentioned above. The application also contains a prayer for an order that the plaintiff furnish a sum of RM200,000.00 as security for the costs of the defendants.
[7] The grounds for the application in encl 32 are:
(i) The plaintiff is owing an amount of USD22,811,399.93 to the defendants;
(ii) The orders and injunctions are oppressive in nature; and
(iii) The plaintiff has no arguable case and the requirements to obtain such orders and injunctions are not met because the plaintiff did not make a full and frank disclosure and failed to give evidence that the defendants are dissipating their assets.
[8] I heard the submission of learned counsel for the plaintiff and learned counsel for the defendants for both the enclosures on 21 May 2012 and due to time constraint, the matter was adjourned to 7 June 2012 for the plaintiff to submit in reply. On 7 June 2012 before the proceedings began, the Court was informed that the defendants had filed an affidavit on 5 June 2012.
[9] Since the matter was already at the stage of submission in reply by the plaintiff, I ruled that the affidavit will not be considered so that the hearing on the two applications can be concluded without having to adjourn the matter to allow the plaintiff to file
