A Justice of the Peace in Sabah cannot attest affidavits for general civil proceedings unless authorized by law; a Mareva injunction may be granted if a good arguable case and risk of asset dissipation are established.

Introduction

[1] This is an appeal against the dismissal of the appellant's application to discharge an ex parte Mareva injunction order and the grant of the inter parte Mareva injunction order. The said orders were granted in favour of the respondent who had obtained judgment in respect of liability against the appellant in 2015. The assessment of damages was still pending at the time the post judgment injunction orders were granted on 11 January 2021 and 26 April 2021.

Background Facts

[2] The brief background facts are as follows. The appellant and respondent entered into an agreement to invest in a joint venture project involving prawn farming (the Pitas Project). For that purpose, Sunlight Aqua Sdn Bhd was set up as the joint venture vehicle. The appellant held 51 per cent of the shares in the company whereas the respondent held 49 per cent of the shares. The company managed to obtain endorsement and funding for the project from a governmental body, ie the Sabah Foundation. Subsequently, the respondent sued the appellant for fraudulently setting up another company to enter into an agreement with a subsidiary of Sabah Foundation. After a full trial, the High Court found the appellant liable for breach of contract and fraudulent concealment and ordered damages to be assessed. Judgment against the appellant was entered on 30 December 2015. The decision of High Court was affirmed by the Court of Appeal and Federal Court. The matter is now pending assessment of damages before the High Court.

Mareva Injunction Application

[3] Pending the assessment of damages, the respondent filed for a post judgment Mareva injunction (encl 140) on ex parte basis. The essential order sought was that the appellant must not remove from Malaysia any of his assets up to the value of RM30 million and in any way dispose of or deal with the same to diminish its value.

[4] The grounds of the application were as follows. Judgment on liability had been entered in favour of the respondent. The appellant has assets within the jurisdiction. There is a real risk of dissipation of assets. The RM30 million upper limit in respect of assets that the appellant must not remove from Malaysia was arrived at in the following way. In the affidavit in support of the ex parte application, the respondent deposed that the High Court made a finding that an investor had agreed to buy 49% of the shares of Sunlight Aqua Sdn Bhd from the respondent for the said price.

Application To Discharge Mareva Injunction Order

[5] The learned Judicial Commissioner heard the ex parte application in encl 140 and granted the ex parte Mareva injunction on 11 January 2021. On 26 January 2021, the appellant filed a notice of application in encl 169 to set aside and discharge the ex parte injunction order. The decision of the learned Judicial Commissioner to dismiss encl 169 and the subsequent grant of the inter parte Mareva injunction order on 26 April 2021 is the subject of this appeal.

[6] The main ground of appeal to discharge the ex parte order was that the affidavit in support was not properly affirmed as it was attested before a Justice of the Peace (JP). Apart from that ground, counsel for the appellant also raised some procedural grounds. The application for ex parte injunction and the unsealed copy of the order that were served on the appellant on 12 January 2021 did not have a return date. The sealed copy of the ex parte Mareva injunction order was not served within 7 days of the order. The above-mentioned grounds were also raised in the form of preliminary objections to the inter parte application o