1. Heng Chew Lang v 1. Heng Choon Wah (JB-22NCVC-64-09/2019)

1.

2.

LEE YIHUI (All of whom have the address for service at Parit Unas Laut, 84150 Muar, Johore.) ... PLAINTIFFS

HENG CHOON WAH No. 159, Bukit Gambir, 84800 Tangkak, Johore.

HENG HER LANG Parit Unas Laut, Parit Jawa, 84150 Muar, Johore.

ALLIANCE BANK MALAYSIA BERHAD (COMPANY NO.: 88103- W) (The address for service is at Ground Floor, Menara Multi-Purpose, No. 8, Jalan Munshi Abdullah, 50100 Wilayah Persekutuan, Kuala Lumpur.) ... DEFENDANTS  GROUNDS OF JUDGMENT (ENCLOSURE 22)  December 12, 2021 2 INTRODUCTION [1] This is an application for Mareva injunction pursuant to Enclosure 22 prayers (2) and (3) which reads as follows:

The 1st Defendant, whether through himself, his representative, servant, agent, worker or anyone of them or in whatsoever manner, that an injunction is granted against the 1st Defendant, until the final decision is given in this Suit, from taking out, disposing off, transferring, charging, dealing with, reducing the value or otherwise or in any way handling any of the assets (whether movable or immovable) in Bank Accounts and / or any money amounting to the value RM1,713,400-00 including but not limited to the assets that are listed in the Annexure A which is exhibited together with this Notice of Application.

1st Defendant and / or any third party is ordered to surrender any assets in their possession (movable or immovable), Bank Account and / or money whether in the name of the 1st Defendant or otherwise and whether owned personally or jointly, that an injunction be granted until the final decision is given in this Suit, from taking out, disposing off, transferring, charging, dealing with, reducing the value or otherwise or in anyway handling any of the assets (whether movable or immovable) in Bank Accounts and / or any money amounting to the value RM1,713,400-00. [2] The Learned Counsel for the Defendant has conceded in prayers

and (8) and the Court has made the appropriate orders. December 12, 2021 3 THE BACKGROUND FACTS [3] The 1st Plaintiff is a Malaysian citizen, of full age and stays at Blk 171, #08-501, Ang Mo Kio, Ave 4, Singapore 560171. The 2nd and 3rd Plaintiffs are daughters of the 1st Plaintiff. The 1st Defendant is the younger brother of the 1st Plaintiff and uncle to the 2nd and 3rd Plaintiffs. The 2nd Defendant is the sister of the 1st Plaintiff and the aunty to the 2nd and 3rd Plaintiffs. [4] The 1st Plaintiff is the registered owner of some of the properties listed in the Statement of Claim. The 2nd and 3rd Plaintiffs are registered owners of the balance of the properties listed in the Statement of Claim. [5] The Plaintiffs claimed they were threatened and / or coerced by the 1st Defendant into signing the papers / documents to enable the 1st Defendant to sell the properties as listed in the Statement of Claim. [6] Out of fear and / or for fear of their safeties, all the Plaintiffs signed the papers / documents for the transfer of titles of the properties. [7] On or around August 2019, the Plaintiffs heard news that the 1st Defendant wish to disposed of the properties. Through the search made at the Land Office, the Plaintiffs discovered that the documents they were compelled to sign were all Power of Attorneys that gave absolute powers to the 1st Defendant to deal with the properties in any way that he pleases. December 12, 2021 4 [8] The Plaintiffs further alleged that they never sign / execute any document before any person by the name of Goh Tay Hock because: a. They never met him as they were all in Singapore on the purported date and time that the documents were purportedly executed. b. The 1st Defendant brought the documents to be executed / signed in Singapore while the said Goh Tay Hock is in Malaysia. c. The Plaintiffs have never been explained on the Powers of Attorney (“PA”) and they never intended to give the said PAs to the Defendants. d. There was no valuable consideration for the PAs to be given. e. The PAs were purportedly created but they are contrary to sections 3 and 7, Power of Attorney Act 1949. [9] No police report was lodged because the Plaintiffs were afraid for their safety and after 2 years they felt confident enough to initiate legal action. [10] The 1st Defendant transferred 1/3 of the property (which held under the title HS(D) 5381 PTD 5321 Grisek Sub District, District of Ledang, Johore) to himself vide Presentation No. 914/2017 and 1/6 of the same property the 2nd Defendant before charging the balance to the 3rd Defendant for the sum of RM133,400-00. December 12, 2021 5 [11] The Plaintiffs were informed by the Director of Land and Minerals, Johore that they may not enter a private caveat on the properties and so the Plaintiffs entered a private caveat on the portion of the 2nd and 3rd Defendants. [12] The Plaintiffs filed the Writ of Summons and Statement of Claim before the High Court of Malaya sitting in Muar on 29 September 2019 and the cause papers were served on 12 February 2020. [13] Pending the trial and outcome of the Writ Action, the Plaintiffs filed an application for an injunction against all the properties as well as a Mareva Injunction of money against the sum of RM1,713,400-00, which is the value of the Charge of the property. [14] As the Defendants have conceded on the application for injunction in respect of the properties, the injunction was granted pursuant to Enclosure 22 para (1) and (8). THE LAW ON MAREVA INJUNCTION [15] Mareva injunction, Mareva order or Mareva regime, after the case MAREVA COMPANIA NAVIERA SA v. INTERNATIONAL BULKCARRIERS SA, [1980] 1 All ER 213 while an earlier case was NIPPON YUSEN KAISHA V. KARAGEORGIS, [1975] 3 All ER 282 decided before MAREVA COMPANIA NAVIERA SA v. INTERNATIONAL BULKCARRIERS SA. It is now defined that a Mareva injunction as a “freezing order”. [16] It must be understood that the purpose of Asset freezing is not as a security,(see JACKSON V. STERLING INDUSTRIES LTD [1987] HCA 23, [1987] 162 CLR 612 (11 June 1987)) neither is it meant to December 12, 2021 6 a form of debt collection in the sense that it is used to pressure a judgment debtor, (See CAMDEX INTERNATIONAL LTD V. BANK OF ZAMBIA (NO. 2), [1997] 1 WLR 632. ) nor is it a type of asset forfeiture (as the case of Anti Money Laundering Laws) since it does not confer upon anyone else a proprietary interest in the defendant's assets, (see CRETANOR MARITIME CO LTD V. IRISH MARINE MANAGEMENT LTD, [1978] 1 WLR 966). [17] In civil claims, the Mareva injunction is a Court Order to stop a judgment debtor from dissipating his assets so as to have the effect of frustrating judgment, rather than the more strenuous test of requiring an intent to abuse court procedure. An example of the former would be paying off a legitimate debt, (see IRAQI MINISTRY OF DEFENCE v. ARCEPEY SHIPPING CO. S.A. (“THE ANGEL BELL”), [1981] 1 QB 65) whereas an example of the latter would be to hide the assets in overseas banks on receiving notice of the action. This would effectively defeat the ends of justice. [18] It is important to understand that a “freezing order” should be granted very sparingly, not only on account of its apparent harshness and will only be reconsidered where the claimant can show that there was at least a good arguable case that they would succeed at trial and that the refusal of an injunction would involve a real risk that a judgment or award in their favour would remain unsatisfied and hence frustrate the ends of justice. The judgment would be seen as a paper judgment of no value whatsoever. (See NINEMIAMARITIME CORPORATION v. TRAVEVSCHIFFAHRTGESELLSCHAFT MBH UND CO KG (“THE NIEDERSACHSEN”), [1983] 1 WLR 1412). December 12, 2021 7 [19] It is quite harsh on defendants because the order is often granted at the pre-trial stage in ex parte hearings, based on affidavit evidence alone. While it may be set aside later but in the commercial world where solvency or liquidity in cash flow is important, would have grave impact on both the well-being of the company but the good will or reputation of the company. This may send shivers down the spines of creditors (such as banks or financial institutions) or cause suppliers, for example to reconsider credit terms granted earlier. Very often, when it involves big businesses and networks, it would have a ripple effect. [20] Because of its hugh potential to cause grave injustice and some parties may cause the abuse of the Court’s powers in an ex parte proceeding, moving parties are required to provide full and frank disclosure at such proceedings, (see UNITED STATES OF AMERICA v. FRIEDLAND, [1996] O.J. No. 4399 (Gen, Div.)). [21] The moving party must make a balanced presentation of the facts and law, including all relevant facts and law which may explain the respondent's position if known to the moving party, even if such facts would not have changed the Court’s decision. Objective assessment and full cards on the table is a must, given the severity of the consequences. (see UNITED STATES OF AMERICA v. FRIEDLAND, [1996] O.J. No. 4399 (Gen. Div.)). [22] If the Court is misled on a material fact, or if there is less than full and frank disclosure, the Court will not be inclined to allow the injunction to continue operating. (see UNITED STATES OF AMERICA v. FRIEDLAND, [1996] O.J. No. 4399 (Gen. Div.)). The Court may resort to contempt proceedings against parties which December 12, 2021 8 provide a misleading picture on the state of affairs. Keeping in mind, full trial has not commenced, affidavits cannot deliberately or negligently omit factual matrix for or against the applicant. [23] Very often, a Mareva injunction is combined with an Anton Piller order in the application. This could be calamitous for a Defendant as the cumulative effect of these orders could prove catastrophic to the whole of the business of the unfortunate Defendant by freezing most of its assets and revealing important information to its competitors, and the two orders have been described by Lord Donaldson as being the law's “nuclear weapons”. (see BANK MELLAT v. NIKPOUR, [1985] FSR 87) This is why it is crucial that the Court scrutinised the facts with a surgical precision without losing sight of the Woods. [24] A motion for Mareva injunction is also frequently applied together with a Norwich Pharmacal order, or more commonly known as a tracing order. A Norwich Order is form of pre-action discovery (as against pre-trial discovery), that allows an aggrieved party to trace otherwise hidden or dissipated assets, with a view to their preservation. [25] The process is regarded as a high-stakes exercise for many reasons: i. The application is almost always made without notice, to prevent the defendant from spiriting away their assets before the freezing order is granted. Applicant’s counsel is therefore required to make full and frank disclosure of all material facts, and the applicable law, to the court. December 12, 2021 9 ii. As with most injunctions, the applicant must provide an undertaking to the court to compensate the defendant for any damage caused by the order. iii. A freezing order that is improperly or sloppily obtained, or one that is drafted too broadly or imprecisely, will cost the party, and its counsel, heavily in terms of credibility with the court. [26] As Lord Donaldson MR explained in POLLY PECK INTERNATIONAL PLC v. NADIR [1992] EWCA Civ 3, [1992] 4 All ER 769 (19 March 1992) that such is not the case: ‘So far as it lies in their power, the courts will not permit the course of justice to be frustrated by a defendant taking action, the purpose of which is to render nugatory or less effective any judgment or order which the plaintiff may thereafter obtain, i. It is not the purpose of a Mareva injunction to prevent a defendant acting as he would have acted in the absence of a claim against him. Whilst a defendant who is a natural person can and should be enjoined from indulging in a spending spree undertaken with the intention of dissipating or reducing his assets before the day of judgment, he cannot be required to reduce his ordinary standard of living with a view to putting by sums to satisfy a judgment which may or may not be given in the future. Equally no defendant, whether a natural or a juridical person, can be enjoined in terms which will prevent him from carrying on his business in the ordinary way or from meeting his debts or other obligations as they come due prior to judgment being given in the action, December 12, 2021 10 ii. Justice requires that defendants be free to incur and discharge obligations in respect of professional advice and assistance in resisting the plaintiffs claims. iii. It is not the purpose of a Mareva injunction to render the plaintiff a secured creditor, although this may be the result if the defendant offers a third party guarantee or bond in order to avoid such an injunction being imposed, iv. The approach called for by the decision in AMERICAN CYNAMID CO. v. ETHICON [1975] UKHL 1 has, as such, no application to the grant or refusal of Mareva injunctions which proceed on principles which are quite different from those applicable to other interlocutory injunctions. [27] Hence, Lord Bingham in FOURIE v. LE ROUX & ORS [2007] UKHL 1 at para. 2, [2007] 1 All ER 1087 (24 January 2007) has this to say; Mareva (or freezing) injunctions were from the beginning, and continue to be, granted for an important but limited purpose: to prevent a defendant dissipating his assets with the intention or effect of frustrating enforcement of a prospective judgment They are not a proprietary remedy. They are not granted to give a claimant advance security for his claim, although they may have that effect. They are not an end in themselves. They are a supplementary remedy, granted to protect the efficacy of court proceedings, domestic or foreign. [28] In GROUP SEVEN LTD v. ALLIED INVESTMENT CORPORATION LTD & ORS [2013] EWHC 1509 (Ch) at para. (6 June 2013), Justice Hildyard outlined the current scope of freezing orders that can be issued by the Court: December 12, 2021 11 i. It is designed to prevent injustice to a successful claimant by preserving assets and funds from being disposed of or dissipated before a judgment is satisfied. ii. “His assets” refers to “assets belonging to that person, not to assets belonging to another person” and without words clearly extending the scope of the phrase “his assets”, assets owned beneficially by someone else will not be subject to the freezing order. iii. A freezing order is a precautionary measure taken urgently to protect the claimant against the risk of dissipation, disposal, reduction in value, or loss of assets pending a fuller examination as to what assets would in reality be available to the claimant for the purposes of enforcing a judgment. iv. If the words are ambiguous, or admit of a more restrictive interpretation, so that it is arguable whether or not the assets in question fall within their scope, the court is unlikely to treat a dealing with such assets as a contempt of court. v. “Assets” also covers assets which are not in the legal ownership of the defendant but in respect of which the defendant “retains the power to direct how the assets should be dealt with.” vi. The phrase “his assets” is extended to include also “assets held by a foreign trust or a Liechtenstein Anstalt when the defendant retains beneficial ownership or effective control of the asset.” December 12, 2021 12 vii. It is clear that those words in the standard form do not extend to assets of which the defendant remains the legal owner but holds for the benefit of someone else. viii. If it is desired and found appropriate to extend the scope of the injunction to assets held in trust (in the case of a facade or sham), additional wording must be included to make that clear, and the Court will only do this sparingly. ix. As to piercing or lifting the corporate veil, ownership and control of a company are not themselves sufficient to provide justification for that course, even when no unconnected third party is involved and it might be perceived that the interests of justice would be served by it. x. Even where the circumstances are such as to justify the exceptional step of piercing or lifting the corporate veil, the effect is not to alter the beneficial ownership of the company’s assets: it is simply to provide for such asset to be available in defined circumstances to the claimant. [29] Afterwards, in the case of LAKATAMIA SHIPPING COMPANY LTD v. SU & ORS [2014] EWCA Civ 636 (14 May 2014) it was emphasized that the assets of a company wholly owned by a person subject to a freezing order are not automatically subject to the order. In that case, Justice Rimer noted: ‘The owner is of course able to control the destiny of the company’s assets. But that does not make this his assets... First, [the order] is still only concerned with dispositions of assets belonging beneficially to the defendant, which these assets do not. Secondly, Mr Su has no authority to instruct the companies how to deal with their assets. All he has is the power, as an agent of the company, to procure the company to make dispositions of its assets. Such December 12, 2021 13 dispositions, when made, are made in consequence of decisions made by the organs of the company. They are not dispositions made by the company in compliance with instructions from Mr Su. That may set to be a somewhat formal distinction. But it is a valid one; only the companies have authority to deal with and dispose of their assets.’ [30] The Malaysia position is found in Order 29 Rules of Court 2012, and the general principles governing the laws are also the same. Given that in Common Law countries and transnational nature of commercial and banking activities. [31] Commonly known as an ‘asset preservation order’ or a “freezing order” in other jurisdictions, this form of injunctions derives its name from the landmark case of MAREVA COMPANIA NAVIERA SA v. INTERNATIONAL BULK CARRIERS SA (“The Mareva”) [1980] 1 All ER 213. It is a form of preventive relief granted to restrain the defendant (who has assets within the jurisdiction of the court) from dissipating or disposing of those assets out of the jurisdiction before any judgment is obtained by the Plaintiff. The power to grant such an injunction is derived from section 25(2) of the Courts of Judicature Act, 1964 and the inherent jurisdiction of the court. [32] In granting such an injunction the following matters must be considered: a) The Plaintiff must have a good arguable case against the defendant, b) The Plaintiff must show clear evidence that the defendant has assets within the jurisdiction of the court; December 12, 2021 14 c) The Plaintiff must show clear evidence that the defendant's assets may be dissipated before judgment can be obtained by the Plaintiff. [PACIFIC CENTRE SDN BHD V. UNITED ENGINEERS BERHAD [1984] 2 CLJ REP 319;[1984] 2 MLJ 144; CREATIVE FURNISHING BHD V. WONG KOI [1989] 1 CLJ REP 22;[1989] 2 MLJ 153; S&F INTERNATIONAL LTD V. TRANS-CON ENGINEERING SDN BHD [1985] CLJ REP 280;[1985] 1 MLJ 62; ZAINAL ABIDIN BIN HAJI ABDUL RAHMAN V. CENTURY HOTEL SDN BHD [1982] 1 LNS 34;[1982] 1 MLJ 260; BIASAMAS SDN BHD V. KAN YANG HENG [1984] 4 CLJ 754]. [33] A Mareva injunction may have a devastating effect on the operations of a company or the life of an individual. For this reason, the court must be mindful of not granting such an injunction in wide terms and should only make an order as is necessary to prevent the injustice sought to be prevented by the plaintiff. [34] The following matters must be considered-a) An application for a Mareva injunction is commonly moved ex parte. The court must ensure that the plaintiff makes full and frank disclosure of all the material facts; b) An application for a Mareva injunction must be supported by an affidavit establishing the matters set out in Para 4 above. Most importantly, the court must evaluate the evidence adduced by the Plaintiff in establishing the danger or risk that the defendant’s assets within the jurisdiction are being moved, December 12, 2021 15 disposed of or dissipated from the jurisdiction so as to frustrate the judgment or prospective judgment of the plaintiff. There must be evidence from which a prudent, sensible commercial person can properly infer a danger of default [THIRD CHANDRIS SHIPPING CORPORATION V. UNIMARINE SA [1979] QB 645]; c) A Mareva injunction should not interfere with the ordinary course of business of the defendant or prevent the payment of creditors in the ordinary course of business. A Mareva injunction should not prevent the defendant from dealing with its assets for legitimate purposes e.g. payment of ordinary living and business expenses, reasonable legal expenses, the discharge of obligations under contracts entered into bona fide before the order was made [PCW (UNDERWRITING AGENCIES) LTD V. DIXON AND ANOTHER [1383] 2 All ER 158], In this regard, the Mareva order must make provision for an amount that the defendant may utilise for ordinary living expenses and a reasonable sum for legal advice and representation; d) A Mareva injunction must specify the upper monetary limit sought to be protected by the injunction. Any amount exceeding this limit may be dealt with by the defendant. [MOTOR SPORTS INTERNATIONAL LTD V. DELCONT (M) SDN BHD [1996] 3 CLJ 483; [1996] 2 MLJ 605], The limit should not usually exceed the maximum amount of the plaintiffs claim. December 12, 2021 16 [35] The plaintiff may also apply for discovery of information and documents in aid of execution of a Mareva injunction. [CBS UNITED KINGDOM LTD V. LAMBERT [1982] 3 ALL ER 237; ASPATRA SDN BHD V. BANK BUMIPUTRA MALAYSIA BHD [1987] CLJ Rep 50; [1988] 1 MLJ 97]. [36] The effect of a Mareva Injunction-whether it converts the claimant to be a secured creditor. In Z LTD V. A-Z AND AA-LL [1982] QB 558 Lord Denning MR said that: “A Mareva Injunction is a method of attaching the asset itself. It operates in rem just as the arrest of a ship does. It enables the seizure of assets so as to preserve them for the benefit of the creditors; but not to give a charge in favour of any particular creditor” [37] This latter qualification is vital to the effect of a Mareva injunction. It operates against the assets of the Defendant, and so can be said to be in ri. It does not of itself create any priority, lien, charge or security in those assets in favour of the party who made the Mareva application, nor in favour of any other party. It is above all a remedy in personam, and breach of it makes the party responsible in contempt of Court. [38] Some important features of a Mareva Injunction: a) A plaintiff with a judgment against the defendant can enforce it against his assets whether covered by the Mareva or not but only subject to the rights other persons may have in the property. December 12, 2021 17 b) Any person with a claim against the defendant can proceed to judgment and enforce it notwithstanding the Mareva Injunction. c) Third party bona fide purchasers for value without notice of the injunction will get good title regardless of the defendant's legal disability with respect to the assets. [39] A Mareva Injunction merely preserves funds and assets and does not give any rights over them which do not otherwise exist. THE ISSUES IN THIS APPLICATION i. Whether all requirements of a Mareva Injunction has been fulfilled. ii. Whether the Plaintiffs are required to provided guarantee for damages in this application. I shall deal with the issues accordingly. i. Whether all requirements of a Mareva Injunction has been fulfilled. [40] The law on Injunction is covered under Order 29 Rules of Court. [41] The affidavit in support of an application made ex parte must contain a clear and concise statement of-

the facts giving rise to the claim; December 12, 2021 18

the facts giving rise to the application for interim injunction;

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;

any answer by the other party (or which he is likely to assert) to the claim or application;

any facts which may lead the Court not to grant the application ex parte or at all;

any similar application made to another Judge, and the order made on that application; and

the precise relief sought. [42] In a simplified form, there must be full and frank disclosure which is the bedrock of interim injunction. [43] There are a few considerations before injunction is granted which are i. the plaintiff has suffered irreparable injury; ii. remedies available at law are inadequate to compensate that injury; iii. considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and December 12, 2021 19 iv. the public interest would not be disserved by an injunction. [44] In granting an interim injunction, the following matters must be considered: a) The Plaintiff’s claim against the defendant must disclose a bona fide serious issue to be tried. Plaintiff is to show locus. At this interlocutory stage, the court is not required to make a final determination on the merits of the claim or the rights of the parties; b) The court must then consider where the justice of the case lies. In determining where the justice of the case lies, the court must consider –

the harm that the injunction would produce by its grant; and

the harm that would result from its refusal, and come to a conclusion as to which party would suffer greater injustice. In determining this, the court must consider whether damages would constitute an adequate remedy in respect of the Plaintiff’s claim. If damages are adequate, the court should not grant an injunction order; c) If the relevant factors are evenly balanced, the court should maintain the status quo. December 12, 2021 20 [AMERICAN CYNAMID CO V ETHICON [1975] AC 396; KEET GERALD FRANCIS NOEL JOHN V MOHD NOOR BIN HARUN ABDULLAH & ORS [1995] 1 MLJ 193; ALOR JANGGUS SOON SENG TRADING SDN BHD & ORS V SEY HOE SDN BHD [1995] 1 MLJ 241; GARDEN COTTAGE FOODS LTD V MILK MARKETING BOARD [1984] AC 130; SUNRISE SDN BHD V FIRST PROFILE (M) SDN BHD & ANOR [1997] 1 CLJ 529]. [45] In our instant case, these facts have been established: a. the landed properties are owned by the 1st Plaintiff along with the 2nd and 3rd Plaintiffs. By virtue of section 340 National Land Code, the doctrine of indefeasibility of title applies. None of the pleadings indicated that the exceptions to the doctrine is applicable and hence the titles are good against the world. b. The 1st Defendant transferred 1/3 of the property (which held under the title HS(D) 5381 PTD 5321 Grisek Sub District, District of Ledang, Johore) to himself vide Presentation No. 914/2017 and 1/6 of the same property the 2nd Defendant before charging the balance to the 3rd Defendant for the sum of RM133,400-00. All these were done by the Power of Attorney that are now being challenged. c. The remaining properties as well as the proceeds from the Charge of the properties or their value are the subject matter of the disputes and their value was placed at RM1,713,400-

December 12, 2021 21 d. The Learned Counsel for the Defendants conceded in the prayer (1) & (8) of Enclosure 22 and this Court granted the Order accordingly. [46] For the purpose of this Writ Action the considerations that must be made are as follows: a) A plaintiff with a judgment against the defendant can enforce it against his assets whether covered by the Mareva or not but only subject to the rights other persons may have in the property. b) Any person with a claim against the defendant can proceed to judgment and enforce it notwithstanding the Mareva Injunction. c) Third party bona fide purchasers for value without notice of the injunction will get good title regardless of the defendant's legal disability with respect to the assets. [47] I find that it is not in dispute that the property which held under the title HS(D) 5381 PTD 5321 Grisek Sub District, District of Ledang, Johore has been disposed off and before the value of the said property is dissipated before the end of this trial, it will (if the Plaintiffs win the arguments) be a mere paper judgment. [48] I take note that the Defendants may apply for the sum of money in excess of RM1,713,400-00 is not subject of the Mareva injunction but the Defendants must provide the details for this Court to discern December 12, 2021 22 between properties / money to the said sum for the purpose of business or other activities of the Defendants. [49] It is the finding of this Court that the Plaintiffs succeeded in fulfilling all the requirements of a Mareva injunction. ii. Whether the Plaintiffs are required to provided guarantee for damages in this application. [50] In most circumstances, the Plaintiff is usually expected to provide an undertaking as to damages. It may be stated in the application itself or in the affidavit in support. [ELIAN MOOIN & ANOR V DATO ZAINAL ABIDIN JOHARI [1997] 3 CLJ 455]. In Malaysia, an undertaking is not a mandatory pre requisite for an injunction. (DATO TAN TOH HUA V TAN TOH HONG & ORS [2001] 1 CLJ 732). [51] An undertaking as to damages may be necessary as the court abstains from expressing an opinion on the merits of the case until the hearing. A defendant may apply for an order of fortification of the undertaking as to damages when the Plaintiff’s undertaking appears illusory or insufficient. [52] In Malaysia, an undertaking is not a mandatory pre requisite for an injunction. (DATO TAN TOH HUA V TAN TOH HONG & ORS [2001] 1 CLJ 732). [53] An undertaking as to damages may be necessary as the court abstains from expressing an opinion on the merits of the case until December 12, 2021 23 the hearing. A defendant may apply for an order of fortification of the undertaking as to pay damages. [54] In ATKIN’S COURT FORMS MALAYSIA – CIVIL PROCEDURE ON UNDERTAKING AS TO DAMAGES UNDER INJUNCTIONS:- “Under an undertaking as to damages, the plaintiff binds himself to abide by any order as to damages which the court may make in the event of the plaintiff’s failure to establish his claim at trial. The damages is awarded to the defendant for whatever damage he has suffered which, as the court should be of the opinion, has been caused by the grant of the interlocutory injunction1 . It is thus the regular practice on the grant of an interlocutory injunction that the plaintiff should give an undertaking as to damages. An undertaking given should be recorded in written form.” [55] As to an undertaking as to damages would only apply in an ex parte application for an interim injunction. There is no such requirement for an undertaking as to damages in an inter partes application: see ESHWARA ENGINEERING SDN BHD V DELTA STRUCTURE SDN BHD [2003] 4 MLJ 18 [2003] 7 CLJ 447; PETRONAS DAGANGAN SDN BHD V OMAR BIN ABDUL SAMAD [1996] 4 MLJ 391. [56] Under the injunction, sometimes the plaintiffs may still be required to give an undertaking even though no injunction was granted but was given an undertaking by the defendant in the terms of the injunction instead: WONG SONG V HIAP LEE MANUFACTURING INDUSTRIES SDN BHD[1998] 1 CLJ 1001; RAJAMANIKAM A/L ADAIKALAM V BOLTON FINANCE BHD[2000] 3 MLJ 454; UBE ENGINEERING SDN BHD V UBE INDUSTRY SDN BHD[2001] 1 CLJ 300. December 12, 2021 24 [57] In Law and Practice of Injunctions in Malaysia 2020, on Undertaking under the heading of Practice & Procedure:- “UNDERTAKING [6.029] Although it is the general practice to require an undertaking as to damages by the applicant, it is not a mandatory one and an omission to provide an undertaking in the affidavit is not fatal. The court has the discretion to dispense with the undertaking if the essential justice of the case so requires it.” [58] In ANG SUE KHOON V MAJLIS BANDARAYA PULAU PINANG [2016] 11 MLJ 516, it was held that – “[93] Secondly, while the imposition of an undertaking in damages may be common in certain types of injunction cases, it is a rule of flexible application, and not an immutable prerequisite. SEEMA DEVELOPMENT SDN BHD V MAH KIM CHYE [1997] MLJU 235; [1998] 1 CLJ 174 concerns two applications for a post judgment Mareva injunction. The facts in that case are different from ours. But the following dicta at p 12 ; 181d–f (CLJ) are of interest to our present discourse. The court there explains that the requirement of an undertaking in damages is flexible in nature, and that it can be dispensed with where the situation is somewhat different from the typical one involving a Mareva injunction: On the question of the requirement of an undertaking in damages, … the circumstances in this case were different from an application for an interlocutory injunction, … As such, the ordinary requirement of an undertaking in damages given in interlocutory injunction applications may, in my view, be dispensed with here. Although the giving of an undertaking in damages is normally required of a plaintiff applying for a Mareva injunction … it remains flexible in application. December 12, 2021 25 [94] Thirdly, even in the context of injunctions (let alone a ‘stay’), an undertaking in damages will be required only if it is fair to do so. That this is so is supported by a case cited by the planning applicant itself, namely SPLENDED WAVE SDN BHD V SONG HWA SUB [2015] 8 MLJ 612 (at p 623G), where reference is made to the following passage by Lord Denning in the case of ALLEN AND OTHERS V JAMBO HOLDINGS LTD AND OTHERS [1980] 2 All ER 502 at p 505 (also cited by the planning applicant): It is said whenever a Mareva injunction is granted, the plaintiff has to give the cross-undertaking in damages … I do not see why a poor plaintiff should be denied a Mareva injunction just because he is poor, whereas the rich plaintiff would get it. One has to look at these matters broadly. As a matter of convenience, balancing one side against the other, it seems to me that an injunction should go to restrain the removal of this aircraft. [95] Fourthly, we are dealing with an inter partes application for stay here. There are authorities to suggest that, again in the context of injunctions (let alone a ‘stay’), an undertaking in damages only applies to the case of an ex parte application for an injunction; and not in an inter-partes application. In ESHWARA ENGINEERING SDN BHD V DELTA STRUCTURE SDN BHD [2003] 4 MLJ 18 at p 28G, it is held that ‘an undertaking as to damages would only apply in an ex parte application for an interim injunction, and there is no such requirement for the same in an inter partes application’. That case followed an earlier decision in PETRONAS DAGANGAN SDN BHD V OMAR BIN ABDUL SAMAD [1996] 4 MLJ 391 at p 402. December 12, 2021 26 [59] In KLASSIK TROPIKA DEVELOPMENT SDN BHD V LEMBAGA RAYUAN NEGERI PULAU PINANG & ORS [2016] MLJU 707, his Lordship Justice Lim Chong Fong held that – “[91] Fourthly and in respect of non-requirement of the undertaking to damages to be provided by the Third to Seventh Respondents, the First Respondent considered the same in paragraphs 90 to 98 of the Grounds. Basically, the First Respondent found as a matter of law that there was no necessity to require such as undertaking in a stay application. In addition, there is a plethora of case authorities that suggest the giving of the undertaking is discretionary in analogous court injunction cases. The undertaking to damages could be dispensed in a fair and just circumstance. [92] I am of the view that this is not in fact a consideration by the First Respondent in the making of the Decision. Rather, this is a cross security that was requested by the Applicant in the event that a stay order is granted. The provision of the security is hence merely collateral. Put simply, the denial of security has no direct bearing on the validity of the Decision. Consequently, I find that the Applicant’s reliance on this as an irrelevant consideration is misconceived. [93] In re-capitulation of the second primary issue, I find and hold that the First Respondent did not take into account irrelevant considerations in making the Decision, contrary to that as alleged by the Applicant. Conclusion [94] For the foregoing reasons, I therefore disallow the Application with costs of RM 5,000 to be paid by the Applicant to the First Respondent, RM 25,000 to the Third Respondent and RM 25,000 to the Sixth and Seventh Respondents collectively.” [60] At the risk of being repetitive, the following facts have been established-December 12, 2021 27 a. the 1st Plaintiff is a Malaysian citizen, of full age while the 2nd and 3rd Plaintiffs are daughters of the 1st Plaintiff. b. The 1st Defendant is the younger brother of the 1st Plaintiff and uncle to the 2nd and 3rd Plaintiffs. The 2nd Defendant is the sister of the 1st Plaintiff and the aunty to the 2nd and 3rd Plaintiffs. c. The 1st Plaintiff is the registered owner of some of the properties listed in the Statement of Claim. The 2nd and 3rd Plaintiffs are registered owners of balance of the properties listed in the Statement of Claim. d. The Plaintiffs claimed they were threatened and / or coerced by the 1st Defendant into signing the papers / documents to enable the 1st Defendant to sell the properties as listed in the Statement of Claim. Out of fear and / or for fear of their safety, all the Plaintiffs signed the papers / documents for the transfer of titles of the properties. e. On or around August 2019, the Plaintiffs heard news that the 1st Defendant wish to dispose off the properties. f. Through the search made at the Land Office, the Plaintiffs discovered that the documents they were compelled to sign were all Power of Attorneys that gave absolute powers to the 1st Defendant to deal with the properties in any way that he pleases. December 12, 2021 28 g. The 1st Defendant transferred 1/3 of the property (which held under the title HS(D) 5381 PTD 5321 Grisek Sub District, District of Ledang, Johore) to himself vide Presentation No. 914/2017 and 1/6 of the same property the 2nd Defendant before charging the balance to the 3rd Defendant for the sum of RM133,400-00. h. The Plaintiffs were informed by the Director of Land and Minerals, Johore that they may not enter a private caveat on the properties and so the Plaintiffs entered a private caveat on the portion of the 2nd and 3rd Defendants. i. The Plaintiffs filed the Writ of Summons and Statement of Claim before the High Court of Malaya sitting in Muar on 29 September 2019 and the cause papers were served on 12 February 2020. j. Pending the trial and outcome of the Writ Action, the Plaintiffs filed an application for injunction against all the properties as well as an a Mareva Injunction of money to the sum of RM1,713,400-00, which is the value of the Charge of the property. [61] The Court of Appeal in DATO' TAN TOH HUA & ORS v. TAN TOH HONG & ORS [2001] 1 CLJ 733, the facts were that on 22 July 1997, R1 and R2 (the petitioners) had presented a petition to wind-up the third respondent (R3). On 7 August 1997, the petitioners obtained an order to appoint provisional liquidators. R3 is a party to the petition. It was contended that R3 is largely a nominal party because the nature of the disputes giving rise to the petition and the December 12, 2021 29 appointment of the provisional liquidators are disputes which are purely between shareholders. The Board of Directors of R3, however, is in control of the shareholders who oppose the petition i.e., the appellants. It was alleged that the appellants, as directors of R3 had engaged the firm of Messrs. Raja, Darryl & Loh to act as the solicitors for R3 in relation to the petition. R3 had in fact taken active part in opposing the petition and the appointment of the provisional liquidators. This, according to the petitioners, would “incur great expense to” R3. Such expense would be “entirely unnecessary” in the light of the fact that the disputes are between shareholders (para. 12 of the affidavit of R1 and R2 at p. 179 of Appeal Record (AR)). It was also alleged that several shareholders had moved for an order discharging the appointment of the provisional liquidators whilst R3 had also made a similar application. The end result, according to the petitioners would be a duplicity of applications at the expense of R3 (para. 14 of the affidavit of R1 and R2 at p. 179 AR). For these reasons the petitioners feared that the funds and assets of R3 may be utilised to fund the opposition of the petition. Hence the application for the injunctions against the appellants (para. 15 of affidavit of R1 and R2 at p. 180 AR). The appellants deny that R3 is a nominal party. To them views of R3 ought to be taken into account at the hearing of the petition. They contend that costs of R3’s legal representation is not a ground for the issuance of injunctions. [62] It was held that, So, for example, in ALLEN V. JAMBO HOLDINGS LTD. the Court of Appeal held, when granting a Mareva injunction, that a cross undertaking was acceptable from the plaintiffs although he was legally aided. The rationale behind this was that questions of financial ability ought December 12, 2021 30 not to affect the position in regard to what is the essential justice of the case. In fact the case of PENGKALEN SECURITIES SDN BHD V. LEOW LI LAIN [1997] 5 CLJ 440 held that it was not necessary for the plaintiff to give an undertaking as to damages since the injustice that could be caused to the plaintiff was very great if the injunction was not allowed. We would hold the same view in the light of the facts and circumstances existing in this appeal. [63] His Lordship Justice Edgar Joseph Jr J (as he then was) when in the case of CHENG HANG GUAN & ORS V. PERUMAHAN FARLIM (PENANG) SDN BHD & ORS [1988] 2 CLJ 35; [1988] 1 CLJ 435 (Rep); [1988] 3 MLJ 90 he said: In any event, the court will not generally deny a plaintiff an interlocutory injunction to which he would otherwise be entitled simply on the ground that his cross undertaking in damages would be of limited or of no value. [64] Therefore, as may be seen in the above authorities, NOT all cases the applicant must put up a guarantee to pay cost or compensation. [65] In our instant case, the actual party that suffered actual loss would be the Plaintiffs. Further the Defendants are at liberty to file for exemptions for any reasonable sum of money for the running of businesses or personal needs. [66] The court must then consider where the justice of the case lies. In determining where the justice of the case lies, the court must consider – December 12, 2021 31

the harm that the injunction would produce by its grant; and

the harm that would result from its refusal, and come to a conclusion as to which party would suffer greater injustice. [67] In determining this, the court must consider whether damages would constitute an adequate remedy in respect of the Plaintiffs’ claim. If damages are adequate, the court should not grant an injunction order. [68] It certainly is unjust if the Plaintiffs were to be ordered to make an undertaking to pay compensation after all the losses and damages done to it. CONCLUSION [69] For the reason aforesaid, I find that the Plaintiffs succeeded in making out a case for a Mareva Injunction and I make the following Orders: i. I grant the Orders sought for in prayers (2) and (3) Encl 22 which are as follows: a. The 1st Defendant whether through himself, his representative, servant, agent, worker or anyone of them or in whatsoever manner be injuncted from and satu injunction be granted until the decision is given in this Suit, from taking out, dispose, transfer, charge, deal with, reduce the value or otherwise or in any way, handle any of the assets (whether movable or immovable) Bank Account and / or any money amounting to the value December 12, 2021 32 RM1,713,400-00 including but not limited to the assets that are listed in the Annexure A which is exhibited together with this Notice of Application. b. 1st Defendant and / or any third party is ordered to surrender any assets in their possession (movable or immovable), Bank Account and / or money whether in the name of the 1st Defendant or otherwise and whether owned personally or jointly, be injuncted from and satu injunction be granted until the decision is given in this Suit, from taking out, dispose, transfer, charge, deal with, reduce the value or otherwise or in any way, handle any of the assets (whether movable or immovable) Bank Account and / or any money amounting to the value RM1,713,400-00 ii. Cost in the Cause. Dated this 12th December 2021 at Muar in the State of Johore. t.t. AWG ARMADAJAYA BIN AWG MAHMUD Judicial Commissioner High Court of Malaya Muar Johor Darul Ta’zim Curia Advisari Vult December 12, 2021 33 Counsels: For the Plaintiffs : Shahareen Begum with Nor Aqlily Mohd. Mahbob For the 1st & 2nd Defendant : Tan Tai Hwa with Lim Yeong Shin For the 3rd Defendant : Shahareen Begum with Nor Aqlily Mohd. Mahbob (mentioning on behalf of Messrs Clarence Edwin Law Office) Solicitors: For the Plaintiffs Messrs Shahareen Begum Advocates & Solicitors No. 6A, Tingkat 1, Jalan Maju Barat Taman Maju Barat 83000 Batu Pahat Johor. [Ref. No. : 11019/SB/PLF/sy/ly] For the 1st & 2nd Defendant Messrs Tan Hwa & Co. Advocates & Solicitors Unit 2-5C (5th Floor), Wisma TC 2 Jalan Anggerik Vanilla Q 31/Q Kota Kemuning 40460 Shah Alam Selangor. [Ref. No. : THC/L/2126/2021(3)] For the 3rd Defendant Messrs Clarence Edwin Law Office Advocates & Solicitors No. 112 Jalan Keris Taman Sri Tebrau 80050 Johor Bahru. December 12, 2021 34 Hearing Date : 16th November 2020, 10th January 2021, 14th April 2021, 13th July 2021, 26th July 2021, 26th August 2021, 10th October 2021. Decision Date : 12th December 2021. LEGISLATURE: ➢ sections 3 and 7, Power of Attorney Act 1949. ➢ Order 29 Rules of Court 2012 ➢ section 25(2) of the Courts of Judicature Act, 1964 LITERATURE: ➢ ATKIN’S COURT FORMS MALAYSIA – CIVIL PROCEDURE ON UNDERTAKING AS TO DAMAGES UNDER INJUNCTIONS ➢ Law and Practice of Injunctions in Malaysia 2020, on Undertaking under the heading of Practice & Procedure CASES REFERRED TO: ➢ ANG SUE KHOON V MAJLIS BANDARAYA PULAU PINANG [2016] 11 MLJ 516 ➢ KLASSIK TROPIKA DEVELOPMENT SDN BHD V LEMBAGA RAYUAN NEGERI PULAU PINANG & ORS [2016] MLJU 707 ➢ DATO' TAN TOH HUA & ORS v. TAN TOH HONG & ORS [2001] 1 CLJ 733 ➢ PENGKALEN SECURITIES SDN BHD V. LEOW LI LAIN [1997] 5 CLJ 440 ➢ CHENG HANG GUAN & ORS V. PERUMAHAN FARLIM (PENANG) SDN BHD & ORS [1988] 2 CLJ 35; [1988] 1 CLJ 435 (Rep); [1988] 3 MLJ 90 ➢ ESHWARA ENGINEERING SDN BHD V DELTA STRUCTURE SDN BHD [2003] 4 MLJ 18 [2003] 7 CLJ 447; ➢ PETRONAS DAGANGAN SDN BHD V OMAR BIN ABDUL SAMAD [1996] 4 MLJ 391. ➢ WONG SONG V HIAP LEE MANUFACTURING INDUSTRIES SDN BHD [1998] 1 CLJ 1001; ➢ RAJAMANIKAM A/L ADAIKALAM V BOLTON FINANCE BHD [2000] 3 MLJ 454; ➢ UBE ENGINEERING SDN BHD V UBE INDUSTRY SDN BHD [2001] 1 CLJ 300. ➢ MAREVA COMPANIA NAVIERA SA v. INTERNATIONAL BULKCARRIERS SA, [1980] 1 All ER 213 ➢ NIPPON YUSEN KAISHA V. KARAGEORGIS, [1975] 3 All ER 282 December 12, 2021 35 ➢ MAREVA COMPANIA NAVIERA SA v. INTERNATIONAL BULKCARRIERS SA. ➢ JACKSON V. STERLING INDUSTRIES LTD [1987] HCA 23, [1987] 162 CLR 612 ➢ CAMDEX INTERNATIONAL LTD V. BANK OF ZAMBIA (NO. 2), [1997] 1 WLR 632 ➢ CRETANOR MARITIME CO LTD V. IRISH MARINE MANAGEMENT LTD, [1978] 1 WLR 966 ➢ IRAQI MINISTRY OF DEFENCE v. ARCEPEY SHIPPING CO. S.A. (“THE ANGEL BELL”), [1981] 1 QB 65 ➢ NINEMIAMARITIME CORPORATION v. TRAVEVSCHIFFAHRTGESELLSCHAFT MBH UND CO KG (“THE NIEDERSACHSEN”), [1983] 1 WLR 1412 ➢ UNITED STATES OF AMERICA v. FRIEDLAND, [1996] O.J. No. 4399 (Gen, Div.)). ➢ BANK MELLAT v. NIKPOUR, [1985] FSR 87 ➢ POLLY PECK INTERNATIONAL PLC v. NADIR [1992] EWCA Civ 3, [1992] 4 All ER 769 ➢ AMERICAN CYNAMID CO. v. ETHICON [1975] UKHL 1 ➢ FOURIE v. LE ROUX & ORS [2007] UKHL 1 at para. 2, [2007] 1 All ER 1087 ➢ GROUP SEVEN LTD v. ALLIED INVESTMENT CORPORATION LTD & ORS [2013] EWHC 1509 (Ch) ➢ LAKATAMIA SHIPPING COMPANY LTD v. SU & ORS [2014] EWCA Civ 636 ➢ PACIFIC CENTRE SDN BHD V. UNITED ENGINEERS BERHAD [1984] 2 CLJ REP 319; [1984] 2 MLJ 144; ➢ CREATIVE FURNISHING BHD V. WONG KOI [1989] 1 CLJ REP 22; [1989] 2 MLJ 153; ➢ S&F INTERNATIONAL LTD V. TRANS-CON ENGINEERING SDN BHD [1985] CLJ REP 280; [1985] 1 MLJ 62; ➢ ZAINAL ABIDIN BIN HAJI ABDUL RAHMAN V. CENTURY HOTEL SDN BHD [1982] 1 LNS 34; [1982] 1 MLJ 260; ➢ BIASAMAS SDN BHD V. KAN YANG HENG [1984] 4 CLJ 754 ➢ THIRD CHANDRIS SHIPPING CORPORATION V. UNIMARINE SA [1979] QB 645 ➢ PCW (UNDERWRITING AGENCIES) LTD V. DIXON AND ANOTHER [1383] 2 All ER 158] ➢ MOTOR SPORTS INTERNATIONAL LTD V. DELCONT (M) SDN BHD [1996] 3 CLJ 483; [1996] 2 MLJ 605 ➢ CBS UNITED KINGDOM LTD V. LAMBERT [1982] 3 ALL ER 237; ➢ ASPATRA SDN BHD V. BANK BUMIPUTRA MALAYSIA BHD [1987] CLJ Rep 50; [1988] 1 MLJ 97]. ➢ Z LTD V. A-Z AND AA-LL [1982] QB 558 December 12, 2021 36 ➢ KEET GERALD FRANCIS NOEL JOHN V MOHD NOOR BIN HARUN ABDULLAH & ORS [1995] 1 MLJ 193; ➢ ALOR JANGGUS SOON SENG TRADING SDN BHD & ORS V SEY HOE SDN BHD [1995] 1 MLJ 241; ➢ GARDEN COTTAGE FOODS LTD V MILK MARKETING BOARD [1984] AC 130; ➢ SUNRISE SDN BHD V FIRST PROFILE (M) SDN BHD & ANOR [1997] 1 CLJ 529 ➢ ELIAN MOOIN & ANOR V DATO ZAINAL ABIDIN JOHARI [1997] 3 CLJ 455 ➢ DATO TAN TOH HUA V TAN TOH HONG & ORS [2001] 1 CLJ 732