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2025 MarsdenLR 3691
HIGH COURT MALAYA KUALA LUMPUR
MIMS CAREER SDN BHD – Appellant
Versus
ARMAND MIKHAYL YEOH ABDULLAH & ORS – Respondent
[Civil Suit No: WA-22NCC-833-11/2024]
A post-judgment Mareva injunction requires proof of a real risk of asset dissipation aimed at depriving the creditor of judgment satisfaction, alongside procedural compliance with efforts to enforce the judgment.
Headnote:(A) Mareva injunction - This case involves an application for a Mareva injunction against defendants to prevent asset dissipation following an arbitral award. The court considered whether the application was truly a pre-judgment or post-judgment Mareva injunction. It concluded that the application was a post-judgment Mareva, as it sought to assist in enforcing an existing judgment. (Paras 1, 6-20)
(B) Judicial requirements for Mareva injunction - The threshold for a post-judgment Mareva injunction includes establishing that there is a real risk of the debtor dissipating assets with the intention to deprive the creditor. The plaintiff’s claims of risk were found inadequate due to delays and previous attempts to secure assets. (Paras 12, 13, 22-38)
(C) Balancing convenience - The court determined that the balance of convenience did not favor granting the Mareva injunction against the defendants, especially considering the lack of direct risk presented by the 4th defendant. (Paras 48-52)
Facts of the case:
The plaintiff obtained an arbitral award against defendants which was registered as a judgment. During enforcement proceedings, it was discovered that defendants had transferred assets to third parties. The plaintiff sought to recover these assets, alleging fraudulent dispositions while applying for a Mareva injunction.
Findings of Court:
The plaintiff failed to demonstrate a meaningful risk of asset dissipation by the defendants, particularly after considerable delays in filing the injunction. Therefore, the application was dismissed.
Issues: The main issues were whether the application was pre- or post-judgment, whether the plaintiff had established a risk of asset dissipation, and the balance of convenience for granting such an injunction.
Ratio Decidendi: The court ruled that the application was improperly characterized as a pre-judgment injunction and failed to satisfy the criteria for post-judgment Mareva injunctions due to a lack of urgency and proper procedural adherence.
Result: Application for the Mareva injunction dismissed with costs awarded to the defendants.
| Table of Content |
|---|
| 1. description of the factual background of the case. (Para 2 , 3 , 4) |
| 2. arguments presented by the plaintiff regarding the mareva injunction. (Para 5 , 6 , 7 , 8 , 9 , 10 , 11 , 12) |
| 3. requirements for post-judgment mareva injunctions. (Para 13 , 14 , 15 , 16) |
| 4. analysis of the flawed nature of the application. (Para 18 , 19 , 20 , 21) |
| 5. examination of the legal requirements for pre-judgment mareva injunctions. (Para 22 , 23 , 24 , 25 , 26 , 27 , 28) |
| 6. assessment of the risk of asset dissipation. (Para 32 , 33 , 34) |
| 7. analysis of the implications for the 4th defendant. (Para 48 , 49 , 50 , 51) |
| 8. final conclusion and dismissal of the application. (Para 53) |
Introduction
[1] This is the plaintiff's application in encl 3 for a Mareva injunction against the 1st to 4th defendants ("this Application" or "Enclosure 3").
[A] Salient Background Facts
[2] The parties are not in dispute regarding the essential factual background. The plaintiff obtained an arbitral award against the 1st to 3rd defendants ("Principal Defendants") on 16 March 2020 ("the Award"), which was subsequently enforced/registered as a judgment of the court on 7 December 2021 ("Enforcement Judgment"). The Award has been affirmed through all levels of court up to the Federal court.
[3] Following registration of the Award, the plaintiff sought to enforce the Enforcement Judgment against the Principal defendants through Judgment Debtor Summons ("JDS") proceedings commenced on 26 May 2022. During the course of these JDS proceedings, it was discovered that the Principal defendants had transferred assets to the 4th to 7th defendants, with these transfers occurring largely before the Award was made in March 2020, and a few occurring after the Award but prior to its registration in December 2021. For instance, property for the 4th defendant was purchased in June 2019, well before the Award was made.
[4] While the overall pattern of transfers involved the 4th to 7th defendants and other recipients, the plaintiff seeks to recover assets from all the defendants (1st to 7th defendants) through this fresh action (the present act), alleging fraudulent dispositions and constructive trusts, whilst simultaneously seeking Mareva injunctive relief against only the 1st to 4th defendants.
[B] The Plaintiff's Claim
[5] The reliefs the plaintiff seeks against the defendants in this action based on its Statement of Claim can be summarised as follows:
Against the 1st defendant:
(i) An account and inquiry regarding the disposition of RM29,266,690.68 from the 1st defendant's Public Bank Account and all gifts, settlements, or inheritance allegedly made between 16 January 2018 and 16 March 2023.
(ii) Declarations that recipients of such gifts hold them on constructive trust for the 1st defendant.
(iii) Orders for immediate payment of monetary gifts to the plaintiff toward settlement of the Award (the Final Award) and Judgment Sum (the Enforcement Judgment incorporating the Award plus accumulated interest and costs), or alternatively declarations that such gifts be subject to execution.
Against the 2nd to 5th defendants
(i) Declarations that the transfer of property at No 25 Jalan 12/17, Petaling Jaya, Selangor to the 5th defendant be declared void for fraudulent disposition and restored to the 2nd defendant, with associated restoration costs borne by the 2nd and/or 5th defendants.
(ii) Alternatively, declarations that the 5th defendant holds the said property on constructive trust for the 2nd defendant.
(iii) Declarations that the property be subject to execution for the Award and Judgment Sum.
Against the 2nd and 7th defendants
(i) Declarations that the transfer of the Pinggiran Golf Property at No 8 Pinggiran Golf, Saujana Resort, Shah Alam, Selangor to the 7th defendant be declared void for fraudulent disposition and restored to the 2nd defendant, with associated costs borne by the 2nd and/or 7th defendants.
(ii) Alternatively, declarations that the 7th defendant hol
