Haidar Mohd Noor J:

[1] There are two applications before me, viz:

1

(1) an appeal to the judge-in-chambers against the decision of the senior assistant registrar in respect of summary judgment under O 14 of the Rules of the High 1980 ('the RHC') (encl 23); and

(2) a summons-in-chambers dated 26 September 1990 (encl 63) to set aside the interim injunction order obtained by the plaintiff on 8 September 1993 and the consequential orders thereto.

[2] I ordered that encl 63 be heard first.

Summons-In-Chambers Dated 26 September 1993 (Enclosure 63)

[3] The plaintiff obtained summary judgment against the defendant in the sum of RM163,585.41 together with interest on 10 November 1992 as per its application (encl 8). In the meantime, by consent, the plaintiff agreed to the application of the defendant for stay of execution pending the appeal to the judge-in-chambers by the defendant (encl 27). Subsequently, the plaintiff filed a summons-in-chambers dated 4 September 1993 (encl 52) for a Mareva injunction order and was heard ex parte on 8 September 1993 and an order in terms granted accordingly.

[4] The ex parte application of the plaintiff is supported by the affidavit of one Tan Thian Paw, the executive director of the plaintiff (encl 51).

[5] The facts as disclosed in the affidavit in support are:

[6] The plaintiff's claim is for recovery of the price of goods sold and delivered by the plaintiff to the defendant for use in a project that was being undertaken by the defendant known as the 'Proposed Garment Factory on Lot No 6412, Jalan Ungku Mohsin, Johor Bahru' for the owners, Messrs Yangtze Kiang Bhd, at a total cost of RM7,880,000.

[7] The project has been completed and it is believed that save for the retention sum of RM200,000 the balance of the contract sum has been released to the defendant [by Messrs Yangtze Kiang Bhd]. The retention sum may be released to the defendant sometime in the middle of September 1993 and it is the only known asset of the defendant. If the summary judgment obtained is affirmed on appeal, the plaintiff contended that there is a real risk that the defendant would deal with the retention sum thereby frustrating the plaintiff in the recovery of the fruits of the judgment.

[8] According to the knowledge of the plaintiff, the nominated sub-contractors harboured doubts about getting their payments from the defendant and secured arrangement whereby they were to be paid directly by Yangtze Kiang Bhd (see exh TTP-1).

[9] Even though the plaintiff obtained a guarantee in writing from Chin Park Kong and Kong Yuen Foo to guarantee payment of all outstanding debts from the defendant, their capacity to pay was doubted by the plaintiff as it is a large sum.

[10] The plaintiff believed that if the defendant has notice of the application for a Mareva injunction, the defendant would in all likelihood expedite the release of the payment of the retention sum to it and thus frustrate the application (see Pacific Centre Sdn Bhd v. United Engineers (Malaysia) Bhd, [1984] 2 MLJ 143.)

[11] Order in terms was accordingly made by the Court on 8 September 1993.

[12] The defendant's counsel in his written submission to set aside the order made by me on 8 September 1993 put forward the following grounds:

(a) [there was] no real risk of dissipation;

(b) [there was] no good arguable case and non-disclosure of defendant's defence of set-off and counterclaim;

(c) [there were] assets within jurisdiction;

(d) the peculiar term of the order dated 8 September 1993;

(e) prejudice to the defendant; and

(f) the Mareva injunction order [was obtained] for a wrong purpose.

[13] Ground (c) was not pursued by the defendant's counsel at the hearing before me. I will therefore confine [myself] to the other grounds in the order as set out by the defendant's counsel in his written submission.

(a) No Real Risk Of Dissipation

[14] The defendant's counsel submitted that the plaintiff must show solid evidence that the defendant's assets will be dissipated and cited a p