JUDGMENT

Zakaria Yatim J:

This is an application by the three defendants for the following:

(a) an order that the mareva injunction and ancillary orders obtained by the plaintiff ex parte on 4 July 1988 be dissolved;

(b) an enquiry be made whether the defendants have suffered damages by reason of the injunction which the plaintiff ought to pay according to their undertaking; and

(c) that the plaintiff pays the cost of the application and the said enquiry.

The ex parte order granted on 4 July 1988 inter alia states:

Upon the application of Lien Hoe Sawmill Co. Sdn. Bhd., the plaintiff in this action and upon reading the summons in chambers dated 28 June 1988 and the affidavit of Ishak Hashim affirmed on 25 June 1988 both filed herein and upon hearing Mr. Palpanaban Devarajoo of Counsel for the plaintiff above named and the plaintiff by its Counsel undertaking to abide by any order the Court or a Judge may make as to damages in case the Court or a Judge shall hereafter be of opinion that the defendants shall have sustained any by reason of this order which the plaintiff ought to pay It Is Ordered and Directed that the defendants whether by themselves, their servants, or agents, or nominees, or otherwise howsoever be restrained, and an injunction is hereby granted restraining them from removing from the jurisdiction of this Court, selling disposing of, charging, pledging, transferring, or otherwise dealing with their assets and or assets held in the names of companies controlled by the defendants, from the jurisdiction (insofar as the same to not exceed the sum of RM30,000,000 (Ringgit Thirty million) including all monies, assets, shares and accounts held in the names of the defendants either severally or jointly, or in the names of their nominees or attempting to take any steps to remove the same out of the jurisdiction until the trial of this action or until further order and it is further ordered that each of the defendants disclose the value, nature and whereabouts of all their assets owned by them, whether beneficially or otherwise, whether in their own names, or in the names of their nominees, or in the names of the companies controlled or directed by any one or more of them or otherwise howsoever, and that such disclosure be made by the defendants on oath by way of an affidavit to be filed in the Honourable Court within seven (7) days of service of this order on each of them.

At the commencement of the hearing of the application, Mr. K.S. Narayanan, Counsel for the defendant raised two preliminary points.

His first objection was that, when the plaintiff made the ex parte application before the Court, they failed to disclose what they alleged were the material facts. He said that the evidence was available to the plaintiff at the ex parte stage. He contended that the plaintiff should not be allowed to file further affidavits to introduce fresh evidence.

Mr. D.P. Naban, Counsel for the plaintiff denied that there was non-disclosure of material facts at the ex parte stage.

In my opinion even if the plaintiff had the evidence at the ex parte stage but did not disclose such evidence, the plaintiff was at liberty to introduce such evidence at the inter - partes stage. In Bank Bumiputra Malaysia Bhd. & Anor. v. Lorrain Osman & Ors. [1985] 2 MLJ 236, I said at p. 241:

Even if the evidence was available at the time of the ex - parte application forMareva injunctions or an Anton Piller Order but the evidence was not presented to the Judge then, in my opinion the plaintiff is not estopped from introducing such evidence during the inter partes proceedings.

Although the above passage is an obiter , the reasoning therein was adopted by the Singapore Court of Appeal in Pac Asian Services Pte. Ltd. v. European Asian Bank AG.[1987] 1 MLRA 421, [1989] 3 MLJ 385 @ p. 39. In Aspatra Sdn. Bhd & 21 Ors. v. Bank Bumiputra Malaysia Bhd. & Anor.[1987] 1 MLRA 198; [1988] 1 MLJ 97; [1987] CLJ 50 @ p. 102, the Supreme Court said:

We are of the view that in ex-par