Civil 101: The Law On Mareva Injunction in Malaysia

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What is a Mareva Injunction

A Mareva injunction is a temporary order which restrains the party being sued (defendant) from disposing of his/ her assets until the determination of the case between the suing party (plaintiff) and the defendant. As noted by the court1:

The sole purpose or justification for the Mareva order is to prevent the plaintiffs being cheated out of the proceeds of their action, should it be successful, by the defendant either transferring his assets abroad or dissipating his assets within the jurisdiction.”

The law in regards to this topic

Statute i.e. written law

The law governing the injunction can be found under Order 29 Rule 1 of the Rules of Court2. In this regard:

  1. The application must be made via a notice of application supported by an affidavit3. In most cases, the application is be made ex parte (i.e. made without notifying the defendant and without requiring the defendant to be present in court)4.
  2. In most instances, the application is filed even before the plaintiff file a suit against the defendant in court5.
  3. The affidavit in support of the application must contain6:
    1. the facts giving rise to the claim;
    2. the facts giving rise to the application for an interim injunction;
    3. the facts relied on to justify the application ex parte, including details of any notice given to the other party or, if notice has not been given, the reason for not giving notice;
    4. any answer by the other party (or which he is likely to assert) to the claim or application;
    5. any facts which may lead the Court not to grant the application ex parte or at all;
    6. any similar application made to another Judge, and the order made on that application; and
    7. the precise relief sought.
  4. If granted, the order will automatically lapse after 21 day7.
  5. The order must be served within 7 days after it is granted8.
  6. If the application is made before a suit is filed in court, the suit must be filed and issued within 2 days of the granting of the order/ such period as the court sees fit9.

Case law i.e. common law

Question: What happens if the suit is not heard within 21 days?

Answer: The plaintiff should apply for a fresh injunction10.

Question: What must the plaintiff show in order to convince the court to grant an injunction?

Answer:

  1. The plaintiff has a fair chance of winning in the suit11.
  2. There is a real risk that the defendant will dispose of his assets12.
  3. The injunction (or the affidavit in support of the application) must provide for the defendant’s living expenses and legal cost13.
  4. The sum that is frozen must not be more than necessary14.
  5. All material facts must be disclosed15.
  6. The defendant’s assets are within Malaysia16. However, the court can also grant a worldwide Mareva injunction in favor of the plaintiff if the defendant’s assets are not situated in Malaysia17.
  7. The plaintiff undertakes to pay the defendant damages in the event he/ she losses his/ her suit against the defendant18.

Example of case law

  1. In Metrowangsa Asset management Sdn Bhd & Anor v Ahmad B Hj Hassan & Ors19, the plaintiffs had initiated a suit against the defendants over purported embezzlement of funds belonging to Lembaga Tabung Haji. The plaintiffs applied for a Mareva injunction over the defendant’s assets that are not in Malaysia. This issue was contended by the defendants. The court noted that there was nothing to prevent the court from granting a worldwide Mareva injunction in favor of the plaintiffs, especially since the assets of some of the defendants are abroad.
  2. In Larut Consolidated Bhd & Anor v Khoo Ee Bee & Ors20, the plaintiff initiated a suit against the defendants for wrongful conspiracy with the defendants conspired to defraud the plaintiffs and causing financial loss to the plaintiffs. The plaintiffs applied for a Mareva injunction against the defendants. The court, however, discharged the initial Mareva injunction but graned a fresh injunction, on the basis that the initial injunction that was granted was oppressive as the order:
    1. failed to make provisions for one of the defendant’s living expenses and legal cost; and
    2. The sum that was frozen was more than what was claimed by the plaintiffs.

1. PCW (Underwriting) Agencies Ltd v Dixon & Anor [1983] 2 All ER 158 (this was subsequently cited in S & F International Ltd v Trans-Con Engineering Sdn Bhd [1985] 1 MLJ 62).
2. 2012.
3. Order 29 Rule 1 (2), Rules of Court 2012.
4. Ibid.
5. Order 29 Rule 1(3), Rules of Court 2012.
6. Order 29 Rule 1(2A), Ibid.
7. Order 29 Rule 1(2B), Ibid.
8. Order 29 Rule 1(2BA), Ibid.
9. Order 29 Rule 1(3)(b), Rules of Court 2012.
10. RIH Services (M) v Tanjung Tuan Hotel [2002] 3 MLJ 1.
11. Larut Consolidated Bhd & Anor v Khoo Ee Bee & Ors [1997] 5 MLJ 77.
12. Ibid.
13. Ibid.
14. Ibid.
15. Ibid.
16. Ang Chee Huat v Engelbach Thomas Joseph [1995] 2 MLJ 83.
17. Metrowangsa Asset Management Sdn Bhd & Anor v Ahmad B Hj Hassan & Ors [2005] 1 MLJ 654.
18. Tsoi Ping Kwan v Loh Lai Ngoh [1997] 3 MLJ 165.
19. [2005] 1 MLJ 654.
20. [1997] 5 MLJ 77.

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