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2021 MarsdenLR 3196
HIGH COURT (KINABALU)
LEONARD DAVID SHIM, JC
Shim Yen Lin – Plaintiff
Versus
Cedric Wong King Ti – Defendant
SUIT NO BKI-22NCvC-24/3 OF 2014
Alex Decena (Jordan Kong and Leslie Chaw with him) (Jayasuriya Kah & Co) for the plaintiff.
Jeyan Marimuttu (Eric Chong with him) (J Marimuttu & Partners) for the defendant.
A Mareva injunction is granted to prevent asset dissipation when there is a real risk of non-satisfaction of a judgment, requiring disclosure of assets within jurisdiction.
Headnote:(A) Rules of Court 2012 - Order 41 Rule 1 - Courts of Judicature Act 1964 - Mareva injunction - Application for post judgment injunction addressed due to real risk of asset dissipation - Defendant must disclose assets and is prohibited from disposing assets exceeding RM30 million. (Paras 1-5, 19, 21-27)
(B) Mareva injunction criteria - Existence of assets within jurisdiction and real risk of dissipating those assets necessary for granting such an injunction. (Paras 37-46)
(C) Compliance with procedural rules - Court emphasized non-compliance does not nullify proceedings if it does not lead to substantial miscarriage of justice. (Paras 30, 34)
Facts of the case:
Plaintiff sought a Mareva injunction post-judgment against Defendant who was found liable for contract breach, citing risk of asset dissipation before damages were assessed. Defendant alleged procedural defects in Plaintiff’s application.
Findings of Court:
The Mareva injunction was granted, controlling the Defendant's disposal of assets and ensuring adequate protective measures until damages are determined.
Issues: Key issues included the legitimacy of the Plaintiff’s affidavit, procedural compliance, and the risk of asset dissipation.
Ratio Decidendi: The court found that the Defendant's prior fraudulent conduct justified the injunction, with failure to disclose assets amounting to potential dissipation merely requiring the court's attention toward justice.
Result: Application for Mareva injunction granted with established conditions.
| Table of Content |
|---|
| 1. application for a mareva injunction (Para 1) |
| 2. grounds for mareva injunction application (Para 2) |
| 3. ex parte order granted (Para 3 , 8) |
| 4. defendant's application to set aside injunction (Para 4 , 5) |
| 5. preliminary objections raised by the defendant (Para 6) |
| 6. legality of the testimony of justices of the peace (Para 15 , 18) |
| 7. court's acknowledgement of irregularity and its implications (Para 19 , 25 , 48) |
| 8. real risk of dissipation of assets by the defendant (Para 37 , 39 , 46) |
| 9. court's final orders (Para 50 , 51) |
Leonard David Shim JC:
GROUNDS OF DECISION
(Enclosure 140 & 169)
[1]This is an application by the Plaintiff for a post Judgment Mareva injunction (Encl. 140). The orders sought by the Plaintiff against the Defendant are as follows:
1.The above-named Defendant must not:
1.1remove from Malaysia any of his assets which are in Malaysia whether in his own name or not and whether solely or jointly owned up to the value of RM30 million or any other amount that this Honourable Court deems fit and appropriate; or
1.2in any way, dispose or deal with or diminish the value of any of his assets whether they are in or outside Malaysia, whether in his own name or not and whether solely or jointly owned up to the same value.
2.This prohibition includes the following assets, in particular:
2.1any credit balance or monies as may or may hereafter be held at any bank, finance company or other financial institution including but not limited to the Defendant’s bank account;
2.2any real property; and
2.3any shares and/or shares in any of the following companies;
3.If the total unencumbered value of the Defendant’s assets in Malaysia exceeds RM30 million, the Defendant may remove any of those assets from Malaysia or may dispose of or deal with them so long as the total unencumbered value of their assets still in Malaysia remains not less than RM30 million. If the total unencumbered value of the Defendant’s assets in Malaysia does not exceed RM30 million, the Defendant must not remove any of those assets from Malaysia and must not dispose of or deal with any of them, but if the Defendant have other assets outside Malaysia, the Defendant may dispose of or deal with those assets so long as the total unencumbered value of all their assets whether in or outside Malaysia, remains not less than RM30 million.
4.The Defendant must inform the Plaintiff in writing at once:
4.1 of all his assets whether in or outside Malaysia whether in his own name or not and whether solely or jointly owned, giving the value, location and details of all such assets, which include:-
4.1.1the identity of all bank accounts;
4.1.2full details on shareholdings in any company;
4.1.3overdraft or loan facility identifying the nature and terms of the facility and state of the indebtedness;
4.1.4any debts owed to them by any person, partnership or body corporate, identifying the amount of such debt, stating how it arose and when the same is payable;
4.1.5real property; and
4.1.6any property, real or personal, held on behalf of or in trust for them.
5.The above information must be confirmed in an affidavit which must be served on the Plaintiff’s Advocates within ten (10) days after this order has been served on the Defendant.
[2]The grounds of this application are as follows:
(a)Judgment on liability has been entered against the Defendant in 2015 and the assessment of damages has been fixed on 25-29.2.2021.
(b)The Defendant have assets within the jurisdiction. See paragraph 33 of the Affidavit in Support (Encl. 141).
(c)There is a real risk of dissipation of the assets and any Judgment sum awarded by the Court in favour of the Plaintiff after the trial of the assessment of damages would remain unsatisfied. See Paragraphs 34 to 45 of Encl. 141.
[3]The Ex Parte Notice of Application (Encl. 140) was heard and an Ex Parte Mareva Injunction order was granted by this Court on 11.1.2021 (Encl. 163).
[4]On 26.1.2021, the Defendant filed a Notice of Application (Encl. 169) to set aside and disch
