JUDGMENT

Haidar Mohd. Noor J:

There are two applications before me, viz:

(1) Appeal to 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 Court, 1980 ('RHC'); (Encl. 23).

(2) 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.

I ordered that Encl. 63 be heard first.

(2) Summons in Chambers dated 26 September 1993 (Encl. 63)

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.

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).

Facts as disclosed in the affidavit in support are:

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 "Proposed Garment Factory on Lot No. 6412, Jalan Ungku Mohsin, Johor Bahru" for the owners, M/s. Yangtze Kiang Berhad at a total cost of RM7,880,000.

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. 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.

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 are to be paid directly by Yangtze Kiang Berhad (see Exh. TTP1).

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.

The plaintiff believed that if the defendant has notice of the application for mareva injunction order 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 at p. 144).

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

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) No real risks of dissipation.

(b) No good arguable case and non-disclosure of defendant's defence of set-off and counterclaim.

(c) Assets within jurisdiction.

(d) Peculiar term of the order dated 8 September 1993.

(e) Prejudice to the defendant.

(f) Mareva injunction order for wrong purpose.

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

(a) No Real Risks of Dissipation

The defendant's Counsel submitted that the plaintiff must show solid evidence that the defendant's assets will be dissipated and citing a passage in S & amp; F International Ltd. v. Trans-Con Engineering Sdn. Bhd. [1985] 1 MLJ at p. 64. I am of the vi