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2021 MarsdenLR 3772
HIGH COURT SABAH & SARAWAK KOTA KINABALU
SHIM YEN LIN – Appellant
Versus
CEDRIC WONG KING TI (ENCLS 140 & 169) – Respondent
[Suit No: BKI-22NCvC-24/3-2014]
Mareva injunctions require proof of asset control and real risk of dissipation, with valid affidavits supporting such injunctions.
Headnote:(A) Courts of Judicature Act 1964 – Sections 11 and 128 – Rules of Court 2012 – Orders 1A, 2, 29, and 41 – Post Judgment Mareva injunction – Plaintiff seeks to prevent Defendant from dissipating assets up to RM30 million following a judgment on liability – Defendant's objection based on the alleged defects in the Plaintiff's affidavit – Court finds attesting authority of a JP in Sabah supported by relevant legislation – Importance of assessing risk of asset dissipation confirmed through past conduct of Defendant – Mareva injunction granted with stipulations for asset management. (Paras 1-51)
Facts of the case: This involves a post Judgment Mareva injunction application by the Plaintiff following a judgment on liability against the Defendant for contract breach, highlighting concerns regarding potential asset dissipation. The Plaintiff demonstrated ongoing allegations of the Defendant's dishonesty and fraudulent conduct to support the injunction.
Findings of Court: The Court acknowledged the relevance of prior judgments on the competence of JPs to affirm affidavits, determining that procedural defects cited in the objection do not affect the merit of the Plaintiff’s application.
Issues: Whether the Plaintiff’s affidavit was competent and valid, and the determination of asset dissipation risk.
Ratio Decidendi: The Court ruled that the provisions allow JPs in Sabah to administer oaths and affirmed that the Defendant’s past conduct raises a real risk of asset dissipation, thus justifying the injunction.
Result: Plaintiff's application for the Mareva injunction is granted with directions and costs awarded to the Plaintiff.
JUDGMENT
[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:
1.1 remove 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
1.2 in 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:
2.1 any 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;
2.2 any real property; and
2.3 any 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:
4.1.1 the identity of all bank accounts;
4.1.2 full details on shareholdings in any company;
4.1.3 overdraft or loan facility identifying the nature and terms of the facility and state of the indebtedness;
4.1.4 any 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;
4.1.5 real property; and
4.1.6 any 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 para 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 paras 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 January 2021 (Encl 163).
[4] On 26 January 2021, the Defendant filed a Notice of Application (Encl 169) to set aside and discharge the Ex Parte Injunction Order (Encl 163).
[5] The grounds of the Defendant's application (Encl 169) are as follows:
(i) The Plaintiff's Affidavit in Support affirmed on the 5 January 2021 was not properly affirmed in accordance with O 41 r 1 of the Rules of 2012 (ROC) read together with s 11 of the Courts of Judicature Act 1964 and the jurat thereto fail to comply with the strict requirements of said O 41 and Form 74 of Appendix A of the ROC. That the oath of affirmation was not administered by a competent person in accordance with the mandato
